opinion clearly intimates that the legislative assembly might enlarge the scope of an existing office, and require the incumbent to exercise additional functions, such as the appointing power. State v. Hyde, 121 Ind. 20, 22 N. E. Rep. 644, was another instance where the legislature created a state office, and named the incumbent, and empowered him to appoint certain other officers, and to fill vacancies. A provision of the Indiana constitution, after dividing governmental powers among the three departments, provided that “no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution expressly provided.” Another provision empowered the governor to fill vacancies in state offices. The court held—three judges against two—that the act of the legislature violated both of these constitutional provisons. A study of the majority opinion shows it to be grounded upon the fact that there was no express authority conferred upon the legislature by the constitution to fill such office. The court say: ‘“Whatever may be said of the constitution of other states, it cannot be successfully maintained that, under the constitution of this state, the legislature possesses latent or undefined power.” If there be any reasoning in that case that does not meet our approval, it is based upon a constitutional provision which we do not have. The case of State v. Peelle, 121 Ind. 495, 22 N. E. Rep. 654, is in its main features identical with State v. Hyde.
Our own researches fully confirm the statement of Chief Justice Elliott in his dissenting 6pinion in the case last named, where he says: “I have searched with all possible care, but I can find no decision which sustains the contention of the relator that the appointing power resides in the governor. I find no conflict, but entire unanimity; for, in every case that I have seen, it is affirmed that, unless expressly prohibited by constitutional provisions, there is a class of offices which the legislature may create and fill by appointment.” Mechem on Public Officers (§ 108) says: “But the power to appoint officers, excepting perhaps, those who are to assist him in the discharge of his personal executive duties, is
