designated, the mode of its exercise and the agency must necessarily be determined by law; in other words, must necessarily be under the control of the legislature.” Cooley, Const. Law, 44. “The general rule is that the legislature may exercise any power not denied to it by the constitution of the state, or the exercise of which is not prohibited by the federal constitution.” Cattle Co. v. State, 68 Tex. 545, 4 S.°W. Rep. 865. Many of the authorities already cited bear upon this subject, and from them the conclusion is clear that, where the legislature has the power to establish by law state institutions,—as, for instance, a state penitentiary, —it also has the power, as incident to the power of establishment, to say by what means and agencies the law shall be carried into effect; and, even when all appointing power is expressly denied to the legislature, it still has power to annex additional duties to an existing office. Walker v. City of Cincinnati, 21 Ohio St. 14; State v. Harmon, 31 Ohio St. 250-258; Bridges v. Shallcross, 6 W. Va. 562. If this be not true, and if the exclusive power of appointment rests in the executive, then the relator must assuredly fail in this case, because the law which established the penitentiary (Ch. 30, Sp. Laws Dak. T. 1883) declared-the warden thereof to be a public officer, and directed that his appointment should be made by the board of directors. Relator is in this court claiming title to an office by virtue of an appointment by a board created and vested with appointing power by the legislative assembly, but urges in support of his claim that the appointing power is vested exclusively in the executive, and the legislative assembly can in no manner control the same.
If in any case a court should be controlled by contemporaneous construction, we are certainly bound in this case. That the constitutional convention that framed that state constitution fully understood that the senate might be empowered to act with the executive in making appointments to office is perfectly clear from § 39 of the constitution, which provides “that no member of the legislative assembly shall receive any civil appointment from the governor or governor and senate during the term for which
