People ex rel. Waterman v. Freeman

Beatty, C. J. By section 2292 of the Political Code, it is provided as follows: “The state library is under the control of a board of trustees, consisting of five members elected by the legislature in joint convention assembled, and holding their offices for the term of four years.”

Under and in pursuance of this provision of the code, the legislature in joint convention elected the respondent a member of said board of trustees, and he thereupon assumed, and has since exercised, the duties of the office.

The relator, holding that the above-quoted provision of the Political Code is unconstitutional in so far as it attempts to confer upon a joint convention of the senate and assembly the power of appointment to the office in [234]question, has instituted this proceeding for thb purpose of ousting the respondent.

The contention on the part of the relator is, that appointing to office is intrinsically, essentially, and exclusively an executive function, and therefore cannot be exercised by the legislature.

Section 1 of article 3 of the constitution of 1879 provides: “The powers of the government of the state of California shall be divided into three separate departments: the legislative, executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except as in this constitution expressly directed or permitted.”

If the making of appointments to office is a function which, in the sense of the constitution, appertains to the executive department of the state government, there would seem to be no escape from the conclusion that the appointment of the respondent by the members of the legislative department was invalid, unless by some specific provision of the constitution such appointment is expressly directed or permitted.

On the part of the respondent it is contended that such specific provision is found in section 4 of article 20, which reads as follows:—

“Sec. 4. All officers or commissioners whose election or appointment is not provided for by this constitution, and all officers or commissioners whose offices or duties may hereafter be created by law, shall be elected by the people, or appointed as the legislature may direct.”