"The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elected, may justly be pronounced the very definition of *Page 488 tyranny." The Federalist, No. 47. Thomas Jefferson, desiring to frustrate forever the tendency toward tyranny and to forestall the encroaching nature of power, formulated the constitutional limitation that each of the three distinct powers of government should be confided to a separate body of magistracy, and each forbidden to invade the provinces of the others. The provision precisely as framed by Jefferson was adopted by the fathers and became a dominant feature of the first and third Constitutions of this commonwealth. Purnell v. Mann, 105 Ky. 87,48 S.W. 407, 49 S.W. 346, 20 Ky. Law Rep. 1146, 1396, 21 Ky. Law Rep. 1129, 50 S.W. 264. The same limitation, with one significant change, was incorporated in the second, and is a pre-eminent part of our present Constitution. Sections 27-28. That one change was a substitution in section 27 of the word"confined" for "confided," thus adding emphasis to the restriction contained in the original declaration. It is settled in this state, and accepted by the majority opinion in this case, that the appointment to a state office is an executive function which the Legislature may not itself perform. Const., section 27; Pratt v. Breckinridge, 112 Ky. 1,65 S.W. 136, 66 S.W. 405, 23 Ky. Law Rep. 1356, 1858; Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455. Since the General Assembly does not have the power of appointment, unless expressly granted or implied in the proper exercise of some undoubted legislative power (Craig v. O'Rear, 199 Ky. 553, 251 S.W. 828), the Legislature can not engraft executive duties upon a legislative office, because that would be to usurp by indirection the power of appointment denied to it by the Constitution. Springer v. Philippine Islands, 277 U.S. 200,48 S. Ct. 480, 72 L. Ed. 849. The court in this case cuts through all the difficulties presented by that undoubted principle by concluding that the Lieutenant Governor is primarily an executive officer to whom legislative functions are a mere incident, and that executive duties may be added by statute to his constitutional functions. The official character of an officer is to be determined by the nature of the duties devolved upon him. 46 C. J., sec. 4, page 926; Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 66 S.W. 405, 23 Ky. Law Rep. 1356, 1858; State v. Kennon, 7 Ohio St. 547; City of Louisville v. Wilson, 99 Ky. 604, 36 S.W. 944, 18 Ky. Law Rep. 427. Legislative officers are those whose duties relate mainly to the enactment of laws. Bouv. Law Dict. (Rawle's 3d Rev.) vol. 3, page *Page 489 2402. "The legislative power we understand to be the authority, under the Constitution, to make laws, and to alter and repeal them." Cooley's Constitutional Limitations (6th Ed.) p. 108. Chief Justice Marshall, with that felicity which makes famous so many of his utterances, put the principle in these words: The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law." Wayman v. Southard, 10 Wheat. 46,6 L. Ed. 253. It is clear, therefore, that whether the Lieutenant Governor shall be deemed a legislative or executive officer depends upon the duties that are devolved upon him by the Constitution. The portion of the functions of government which he must exercise fixes his character as a public officer. The provisions of the Constitution respecting the Lieutenant Governor must be examined to ascertain his present, as well as his potential, duties. Section 82 provides the time and manner of his election, his qualifications, and his ineligibility for the succeeding term. Section 83 reads: "He shall, by virtue of his office, be president of the senate, have a right, when in committee of the whole, to debate and vote on all subjects, and when the senate is equally divided, to give the casting vote." Section 84 provides, in certain contingencies, for his succession to the power and authority of the Governor, to be exercised until the Governor resumes his functions, or another Governor is elected. That same section prescribes also the contingency in which the Lieutenant Governor may perform certain judicial functions. Section 85 relates to a president pro tempore of the Senate, and for his succession, in certain exigencies, to the governorship with like authority as the Lieutenant Governor when acting as Governor. Section 86 reads:

"The lieutenant governor, or president pro tempore of the senate, while he acts as president of the senate, shall receive for his services the same compensation which shall, for the same period, be allowed to the speaker of the house of representatives, and during the time he administers the government as governor, he shall receive the same compensation which the governor would have received had he been employed in the duties of his office."

Section 87 concerns the succession to the gubernatorial duties in the event neither the Governor nor the *Page 490 Lieutenant Governor is available, and in still other contingencies. Section 90 governs contested elections of the Governor and Lieutenant Governor, section 95 provides when the latter shall be elected, and section 96 relates to the method of compensation for his official services. No other provision of the Constitution directly affects the matter. The court concludes from a consideration of these sections of the Constitution that the Lieutenant Governor belongs to the executive department and hence the "appointive board" is an executive agency made up of those belonging to the executive department of the government. I think that conclusion is wrong, that the grounds assigned in support of it are unsubstantial and unsound, and that the authorities adduced are inapt and unconvincing. The Lieutenant Governor confessedly has present legislative functions and is made by the Constitution a part of the law-making department. He has no present executive duties. In certain contingencies he leaves the legislative and enters the executive department, but his normal functions are purely legislative. Indeed, the act before us contemplates the Lieutenant Governor solely in his legislative character. None of his executive duties can arise while the Governor is performing the duties of his office. The present act associates the Lieutenant Governor with the Governor and the Attorney General, thus confirming the conclusion that it contemplated him only in his capacity as a legislative officer. The Lieutenant Governor does not at the same time have both legislative and executive duties. When he takes on one he puts off the other. At the present time and at the time we are considering when the appointments were made the Lieutenant Governor was a legislative officer in the active discharge of his legislative duties. I believe his character as an officer takes color from the active duties imposed upon him and that until the contingency arises that clothes him with executive duties, he is nothing but a legislative officer. He may be of one character at one time and another later, but he cannot be both at the same time, and there is no penumbra when he is neither unless it be when he is exercising judicial functions at an impeachment trial. But that also partakes of the character of extraordinary legislative duties imposed by the Constitution. When he assumes executive office he is absolved from legislative duties, when he is excused from executive duties he resumes his legislative functions, and while charged with *Page 491 legislative obligations he has no executive responsibilities whatever. The character of his office is not to be determined by what he may be called upon to do, but by what he must do as a part of the regular duties of his office. All Lieutenant Governors must perform legislative functions. None of them is required to perform executive duties, except in the contingencies provided by the Constitution; and if such a contingency should arise, the Lieutenant Governor would not perform on the appointing board as a legislative officer, but would succeed to that duty in his character as acting Governor. That the Lieutenant Governor does not at the same time have both executive and legislative duties is a distinction observed in the Constitution itself. His compensation varies with the changes in his duties. Section 86, Const. When he is serving in a legislative capacity he draws the same salary as the speaker of the House, and when he serves in an executive capacity he draws the same salary as the Governor. This demonstrates that there is no confusion or mixing of his duties, and when he performed the act in question he was drawing the salary of a legislative officer and performing functions pertaining thereto. He was utterly without executive authority or obligation. The mere mechanics of mentioning him in the Constitution with the executive department sheds no light. Obviously that was done because it dealt with the succession to the governorship in case of a vacancy in that office. The Constitution makers were confronted with the necessity of dealing with the Lieutenant Governor as a potential successor to the Governor and also as an active legislative agent. It was necessary to refer to him in one or the other parts of the Constitution. It was thought not inappropriate to provide for the succession to the governorship immediately after creating the office of Governor. This is made more manifest by the section under the executive department providing for the succession of the president pro tempore of the Senate in the event the Lieutenant Governor and Governor both were out of office. The president pro tempore must be one of the senators and no one contends that he is an executive officer. Yet his office is created in the same subdivision of the Constitution that refers to the Lieutenant Governor, and he is in line of succession to the duties of the Chief Executive to the same extent and with precisely the same powers. It is not uncommon in the Constitution for those of one *Page 492 department, as determined by their duties, to be mentioned in another department, with which they, in some capacity or contingency, may have connection. We do not pause to point out these instances, but they are numerous and may be found readily by reference to the Constitution. Indeed, there is no consistent mechanical theory maintained in the structure of that instrument. Each section is independent, mandatory, and complete and all must be read and construed together to give effect to each word, sentence, clause, and paragraph. Furthermore, the separation of powers broadly delimited by sections 27 and 28 of the Constitution is a basic and vital principle and not merely a matter of governmental mechanism. It is not a matter of terminology. Names are nothing; titles are without significance in this connection. The constitutional limitation is not concerned with terminology or the names or titles that may be annexed to offices. It consists of a comprehensive, vital principle that forbids any person or persons being of one of the grand departments of government from exercising any power properly belonging to either of the others, except in the instances expressly directed or permitted. The Lieutenant Governor is certainly a person of the Legislative department. He presides over one of its bodies and participates in legislation. He may debate, vote, and sign enactments. He has all the rights of a senator and one more, the right to preside and cast a deciding vote in case of a tie. His compensation is based upon his legislative services. He has no executive or other duties to perform. His office is with the Senate. His work is done in that chamber. And the highest judicial authority in this country has held that the presiding officers of legislative bodies are of the legislative branch of government and incapable of exercising executive functions attempted to be vested in them. Springer v. Phillippine Islands, 277 U.S. 198, 48 S. Ct. 480, 72 L. Ed. 849. The argument and the authority of that case are undeniable, and can be avoided only by a relaxation of the rule, inherent in the American constitutional system, and express in our Constitution, which forbids the legislative agents from exercising executive functions, except in instances particularly permitted and this is not such an instance. The argument that makes the Lieutenant Governor an executive officer because he succeeds, in certain contingencies, to an executive office would make *Page 493 him also a judicial officer because in certain cases he is vested with some judicial powers. Constitution, sec. 84. But it is said that section 93 of the Constitution authorizes the Legislature, in so far as inferior state officers are concerned, to prescribe by law whether they shall be appointed or elected, and the manner thereof. That is true, but it affords no authority to the Legislature to depart from the limitations of sections 27 and 28 of the Constitution. Section 91 of the Constitution, referring to the Attorney General and other state officers created by the Constitution, provides that "the duties of all these officers shall be such as may be prescribed by law;" and section 93 provides that "the duties and responsibilities of these officers shall be prescribed by law." Yet nobody would have the hardihood to contend that authority to prescribe the duties of the named officers permitted the Legislature to impose upon any of them duties of a legislative or judicial character. It means and can only mean that the General Assembly under the Constitution is authorized to define the duties of the respective officers, but only of a character constitutionally consistent with the branch of the government to which the officer belongs. The provision that inferior state officers may be appointed or elected in such manner as may be prescribed by law simply means that the Legislature may provide for such officers to be elected by the people, or to be appointed, but certainly it is no express or implied permission to bestow the appointment of officers elsewhere than upon executive authority. If the principle of the majority opinion be carried to its logical conclusion, the case of Sibert v. Garrett, supra, would be destroyed. That case dealt with officers created by the Legislature and it was provided how the offices should be filled. In fact the statute itself named the officers and provided for the selection of their successors. Cf. 12 C. J. p. 837, sec. 319. To authorize the Legislature to provide by law for certain objects does not authorize it to depart from sections 27 and 28 of the Constitution. If they depart from those sections, the act is not law, since the Legislature can enact only such laws as conform to, and are consistent with, the Constitution.

The majority opinion refers to certain authorities to sustain the proposition that a law conferring new duties on existing officers is not forbidden. That principle is not questioned, but it is subject to the limitation that the *Page 494 added functions must be of like character, consistent with existing duties, and conformable to the Constitution respecting confinement of powers to the department where they belong. Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133. A number of boards created by the General Assembly are mentioned in the opinion. It is significant to observe that of the numerous bodies of that character created from time to time, not a single one of them contained a legislative officer or agent. Every one of them was composed of the heads of executive or administrative departments without any connection with the legislative branch of the government. For the first time the Lieutenant Governor is now placed upon a board to perform executive duties. The court refers to 36 Cyc. p. 855 as authority for holding that the Lieutenant Governor is an executive officer. It declares that the "lieutenant-governor is an executive officer provided for by the Constitutions, andhis principal duties are to act as president of the senate." The reference to his duties being in the legislative department shows that the characterization of his office was not correct but self-contradictory. The cases cited to support the text are State v. County of Duval, 23 Fla. 483, 3 So. 193; People v. Cornforth, 34 Colo. 107, 81 P. 871; State v. Sadler, 23 Nev. 356,47 P. 450, and Crosman v. Nightingill, 1 Nev. 323. The cases do not support the text. Not a single one of those cases had occasion to determine the character of the office, or to deal with the duties of the officer. The subject is not discussed in any particular in any of those four cases, and none of them contains a hint of the proposition to which they are cited.

The majority opinion mentions some decisions as "inferentially" supporting it. An examination of those cases will demonstrate the fallacy of the assumption. In State v. Kennon, 7 Ohio St. 546, it was decided that an act of the Assembly attempting to authorize three private individuals to name the "commissioners of the state house," with defined duties, was unconstitutional because the Legislature was forbidden to exercise appointing power. Neither the prevailing opinion nor the concurring opinion mentions the Lieutenant Governor or refers to his functions or the character of his office. In Bridges v. Shallcross, 6 W. Va. 562, an act creating a corporate commission composed of the Governor, Auditor, Treasurer, School Superintendent, and Attorney General, *Page 495 called a board of public works, and authorized to appoint a superintendent of the state penitentiary, was assailed. The attack leveled against the act was grounded upon two propositions: (1) That the act amounted to a legislative appointment to office; and (2) that it invested the incumbents of the offices named with an additional office when they were forbidden by the Constitution of the state to hold two offices. Both propositions were denied by the court. The case of State v. Bellamy, 60 Okl. 62, 158 P. 897, simply held, as announced in a syllabus prepared by the court, that "a public officer is bound to perform the duties attached to his office for the compensation fixed by law." Neither of these three cases inferentially or otherwise described the character of the office of the presiding officer of a legislative body or had any such question under consideration. In Bynum v. Strain,95 Okl. 45, 218 P. 883, it was decided that the Governor of the state, who had statutory power to appoint and for cause to remove a banking commissioner, was not thereby vested withjudicial powers in violation to the Constitution. The sole reference to the Lieutenant Governor was an incidental quotation from a section of the Oklahoma Constitution which provided that the Governor, Lieutenant Governor, Secretary of State, and nine other state officials were executive officers with specified duties. Doubtless any court would hold that a Constitution which designated a Lieutenant Governor as an executive officer would be given effect, but no question concerning the Lieutenant Governor was before the court. Cf. People v. McCullough, 254 Ill. 9, 98 N.E. 156, Ann. Cas. 1913B, 995, and In re Railroad Commissioners 15 Neb. 679,50 N.W. 276. In Southern Pacific Co. v. Bartine (C. C.) 170 F. 725, 748, an act of the Legislature of Nevada which created an appointing board composed of the Governor, Lieutenant Governor and Attorney General was attacked on the ground that the Legislature itself appointed to office when it named the offices whose incumbents should constitute the board. The court held:

"This is not an appointment of those officers to a new office, but an increase in their official power and duty. Even if it be conceded that the Constitution forbids the exercise of the appointing power by the Legislature, still the act in question is not for this reason repugnant to that instrument, because, no appointing power, as contemplated by the prohibition, has been exercised by the Legislature."

The question as to the character of the office of Lieutenant Governor was not raised, discussed, or decided, and the decision to the effect that the act merely added new powers to existing officers is not the question here. The authoritative and direct decision of the Supreme Court of the United States that presiding officers of legislative bodies are officers of that department, and incapable of exercising executive power, stands unimpaired and unanswered. The General Assembly may create the agencies for the administration of the government, but it may not choose the agents to administer it. Equally it may not delegate to legislative agencies any distinct executive authority. So far as I can find, or as has been suggested, no court has ever held that the character of an office can be determined otherwise than by the duties delegated to it. We must go far afield to determine the official character of an officer from an uncertain duty to which he may succeed in contingencies which may never occur, and ignore the character of actual functions presently prevailing. I cannot believe that the Lieutenant Governor as such, while performing his legislative duties, and when he is under no executive obligations whatever, is anything other than a legislative officer.

It is said in the opinion, although the question is not presented, that the provision of the act in question providing for the filling of vacancies is valid and not a violation of section 76 or section 152 of the Constitution. The court discharges all that duty dictates when it disposes of the controversy presented. Propriety and caution alike preclude any prophetic solution of potential, or even probable, problems that may or may not arise. Such a declaration is without other sanction than its persuasiveness, and doubtless arguments as good can be advanced when the issue arises. But that is not the only reason for my disagreement, and, since I regard the declaration of the court in that respect as wrong, a sense of duty impels that the reasons should be stated. The provisions of the Constitution concerning the power of the Governor respecting vacancies read:

Section 76: "He (the governor) shall have the power, except as otherwise provided in this constitution, to fill vacancies by granting commissions, which shall expire when such vacancies shall have been filled according to the provisions of this constitution."

Section 152: "Vacancies in all offices for the state at large, or for districts larger than a county, shall be filled by appointment of the governor; all other appointments shall be made as may be prescribed by law."

These provisions are plain, precise, unambiguous, and all-inclusive. The rules of constitutional construction are not in dispute. "The discretion of the courts is more restricted in applying the rules of construction to a plan of government contained in a written constitution, than in the construction of statutes. And the reason is conclusive. Statutes are often hastily and unskillfully drawn, and thus need construction to make them sensible. But constitutions import the utmost discrimination in the use of language." Greencastle Tp. v. Black, 5 Ind. 566, 570. That which the words declare is the meaning of an instrument; and neither courts nor Legislatures have the right to add or to take away from that meaning. This is true of every instrument, but when we are speaking of the most solemn and deliberate of all human writings, those which ordain the fundamental law of states, the rule rises to a very high degree of significance. It must be very plain, nay, absolutely certain, that the people did not intend what the language they have employed, in its natural signification, imports, before a court will feel itself at liberty to depart from the plain reading of a constitutional provision. On this subject Chief Justice Marshall says, speaking of the Constitution of the United States: "As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L. Ed. 23. Newell v. People, 7 N.Y. 9, 97. This court, in numerous instances not necessary to notice, have expressed the same principle.

In expounding a Constitution it is proper to take a broad view and it is presumed that every word, sentence, and phrase was deliberately chosen to express an exact meaning. The Constitution of the state was adopted by the people of the state as the fundamental law of the state. Its every mandate was intended to be paramount *Page 498 authority to all persons holding official trusts, in whatever department of government, and to the sovereign people themselves. No mere unessential matters were intended to be engrafted in it; but each section and each article, as solemnly weighed and considered, and found to be essential to the form of constitutional government adopted. Whenever the language used is prohibitory, it was intended to be a positive and unequivocal negation. Whenever the language contains a grant of power, it was intended as a mandate exclusive in character. Whenever the language gives a direction as to the manner of exercising a power, it was intended that the power should be exercised in the manner directed and in no other manner. It is an instrument of words granting powers, restraining powers and reserving rights. These words are fundamental words, meaning the thing itself; they breathe no spirit except the spirit to be found in them. To say that its terms are mere weasel-words is to license a violation of the instrument every day and every hour. To preserve the instrument inviolate, we must regard its words, except when expressly permissive, as mandatory, breathing the spirit of command. Varney v. Justice, 86 Ky. 596,6 S.W. 457, 9 Ky. Law Rep. 743; McCreary v. Speer, 156, 9 Ky. Law Rep. 743; McCreary v. Speer, 156 Ky. 783, 162 S.W. 99. The majority opinion adds to the constitutional provision the word "elective" and thus confines the appointive power of the Governor conferred by the Constitution to "all elective offices" for the state at large and for districts larger than a county. The court cites Shelly v. McCullough, 97 Ky. 164,30 S.W. 193, 17 Ky. Law Rep. 53; Poyntz v. Shackelford, 107 Ky. 546, 54 S.W. 855, 21 Ky. Law Rep. 1223, and some other cases not in point, but in which the word elective was employed in referring to the subject. Since there is no ambiguity in the constitutional provision, there is no room for resort to rules of interpretation. Lake County v. Rollins, 130 U.S. 662,9 S. Ct. 651, 32 L. Ed. 1060; Gibbons v. Ogden, 9 Wheat. 1,6 L. Ed. 23; Crick v. Rash, 190 Ky. 820, 229 S.W. 63; Barker v. Crum,177 Ky. 637, 198 S.W. 211, L.R.A. 1918F, 673. The insertion of a word is not justified by any necessity to render the rule reasonable or operative or to avoid a conflict with any other provision. It is not compelled by a course of decision, or long acceptance or acquiescence. Shelley v. McCullough, supra, involved a city office, and Poyntz v. Shackelford, supra, was expressly overruled in Pratt v. Breckinridge, *Page 499 112-Ky. 1, 65 S.W. 136, 66 S.W. 405, 23 Ky. Law Rep. 1356, 1858, where section 152 of the organic law was expounded and declared to mean what it said. The first portion of section 152 providing for special elections to fill vacancies employs the words "elective officers," thus demonstrating that the distinction between "all offices" and those made elective was understood by the authors of the organic law. The fallacy in the reasoning employed in the earlier cases is exposed by the later ones and requires no repetition. Pratt v. Breckinridge, supra; Sibert v. Garrett, supra. It is suggested in the opinion of the court that section 3758 of the statutes was a legislative construction of the Constitution. That statute mentions a number of offices in which vacancies should be filled by appointment of the Governor and adds that a vacancy in any other office where there is no provision of law for filling same, shall be filled by the appointment of the Governor. In the first place, the Constitution is plain and unambiguous repelling any resort to legislative construction, and if the act was contrary to the Constitution, it was void. In the next place, the act shows that the General Assembly understood the Constitution, which vested in the Governor the power to fill "all vacancies" in offices for the state at large and for districts larger than a county, and conferred upon the Assembly the power to provide for the filling of vacancies in all other cases. It proceeded to enact a law conferring upon the Governor the power to fill vacancies in the instances not conferred upon him by the Constitution, which was for offices in districts not larger than a county. The act drew no distinction between elective and appointive offices, but expressly deferred to the constitutional mandate. I can find neither reason nor authority for inserting the word "elective" in section 152 of the Constitution, which confers upon the Governor the power to fill vacancies in "all offices for the state at large or in districts larger than a county." I think the Constitution means what it says and ought to be obeyed.

For the reasons indicated, I dissent from both propositions announced by the court. *Page 500