not inherent in the chief executive, but must exist, if it exist at all, by virtue of the authority conferred upon him by the sovereign power.” By this we understand the author to mean that the fact that executive power is lodged with the governor— the fact that he is constituted chief executive—does not give him appointing power. In Mayor, etc., of Baltimore v. State, 15 Md. 376, cited in original opinion in this case, the court said: “We are not prepared to admit that the power of appointment to office is a function intrinsically executive, in the sense in which we understand the position to have been taken; namely, that it is inherent in, and necessarily belongs to, the executive department. Under some forms of government it may be so regarded, but the reason does not apply to our system of checks and balance in the distribution of powers, where the people are the source and fountain of government, exerting their will after the manner and by instrumentalities specially provided in the constitution. The case cited [3 J. J. Marsh. 4or] affirms that it is intrinsically executive; but the judge explains that the nature of the power is executive, whether exercised by the governor or a court, as distinguished from those acts of the court that are merely judicial. But it is nowhere intimated that another department than the executive cannot exercise the power.” The erudite Judge Cooley, in speaking of this same Kentucky case, so much relied upon, after stating that the case declared the appointing power to be inherently executive, says: “In a certain sense this is doubless so, but it would not follow that the legislature could exercise no appointing power, or could confer none on others than the chief executive of the state. Where the constitution contains no negative words to limit the legislative authority in this regard, the legislature, in enacting a law, must decide for itself what are the suitable, convenient, or necessary agencies for its execution, and the authority of the executive must be limited to taking care that the law is executed by such agencies.” Cooley, Const. Lim. 136, note 2. In Biggs v. McBride, 17 Or. 640, 21 Pac. Rep. 878, cited in original opinion the court say: “It was not claimed at the argument that
