cial opinion upon the subject." The present | 1, article 15, is that in State v. Kennon, 7 case presents, as strongly as any in the state's Ohio St. 546. The provision of the constihistory, a practical construction of our pres-tution of Ohio considered in that case, and ent constitution upon the question in review. corresponding to that of this state, is as folBeginning with the session of 1855, when lows: "The election and appointment of the first board of prison directors was created, all officers, and the filling of all vacancies, and at the first session of the general assem- not otherwise provided by this constitution, bly after the adoption of the constitution, or the Constitution of the United States, when existing prison leases permitted, we shall be made in such manner as may be difind the general assembly assuming the ap-rected by law; but no appointing power shall pointing power as to officers of state's prison be exercised by the general assembly, except as control. We find that in 1859 (the Consti- prescribed in this constitution and in the tution not yet ten years in force) the general election of United States senators." It was assembly assumes and exercises the power of there held that under this provision the genappointment of the state's prison directors eral assembly had no power of appointment for the Northern prison. We find that from to a certain office reated after the adoptior session to session, from those periods to the of the constitution. This conclusion is not session of 1893, this power was assumed and remarkable, when we recall the words of exercised by the general assembly without the constitution, above italicized, denying exception, doubt, or question of authority. the right of the general assembly to appoint, The exercise by the general assembly, for and when we observe that the power to prenearly forty years, of this power, without scribe is given with that expressed limitation question from the people, and covering pe- upon it. In this view of the case it renders riods of the bitterest political history in the very little support to the construction of our annals of our state and nation, is not the only constitution urged by appellant. Under this fact giving strength to the construction fav- provision, however, it has been recognized oring the existence of that power. In the in at least two instances, by the same court, early periods of that assumed authority there that the general assembly is empowered to were in the general assembly, as members designate the person, body, or functionary thereof, David Kilgore, Walter March, Wal- to make such appointments. State v. Cov ter E. Beach, Thomas D. Walpole, Henry G. ington, 29 Ohio St. 102; State v. Smith, 44 Todd, Amzi L. Wheeler, Ezekiel D. Logan, Ohio St. 348. Rodolphus Schoonover, John L. Spann, Sam- We have demonstrated very clearly, we uel J. Anthony, Jefferson Helm, John Math-believe, that the appointment to the office of es, Spencer Wiley, William F. Sherrod, prison director is not, by our constitution, George W. Moore, Hugh Miller, Isaac Kin- intrusted to the governor alone. Concedley, Allen Hamilton, and possibly others ing, then, for the sake of the inquiry, that who had also been members of the constitu- the legislature's power was to prescribe the tional convention. Not only this fact, but manner of appointment, and not to make the the further fact that during the period of appointment, has it violated this privilege this long acquiescence in the construction by naming the persons or functionaries to of the constitution favoring the existence of make the appointment? Having under conthe power of appointment in the general as-sideration an appointive office, we do not sembly sat, as governors of the state, men consider to what extent the word "manner, familiar with the constitution, its origin, as employed in section 1, article 15, may inand its intended reforms, -lawyers whose clude a choice by the general assembly as to ability and fame are the just pride of our whether a given office may be filled by an state, and including in the long list the names election, and we confine our consideration of of Wright, Willard, Hammond, Lane, Mor the word in its relation alone to appointive ton, Baker, Hendricks, Porter, Gray, and offices. Hovey. It is significant also that Gov. Hovey, in his numerous contests over the question of the proper lodgment of the appointing power, did not question the power of the legislature to appoint to the office of prison director, though such appointments were twice made during his service as gov. ernor. If we felt that the question as to the power of the legislature to make the appointment of prison officers, construing the constitution upon its letter and spirit, were doubtful, we should feel it our duty to submit to this practical exposition. But we do not regard it as doubtful, and are constrained to differ with the construction of section 1, article 15, as held, or as the reasons given in the cases relied upon by the appellant imply, so far as they may be deemed authority against the right of the legislature to choose officers for the control of the prison North.

The principal decision upon which those cases rest, in so far as they discuss section

From the appellant's contention his definition of "manner" is necessarily a direction to the governor to appoint. We have suggested already the fallacy of this position. Nor do we believe that manner" was intended to permit simply the direction of the particular mental operation in arriving at a choice, nor the qualifications of the person to be chosen, nor character of commission, nor the duration of the term, nor the duties of the person or position, nor the time nor the place of appointing. All of these. save the first, are purely legislative functions, and the first is necessarily with the person chosen, and its direction is not essential to the performance of the privilege, and is not susceptible of legislative, executive, or ju dicial direction. "Manner" according to the appellant's theory, means the person or functionary to make the appointment. This is so by the case of State v. Denny, supra, where it was said that the manner of ap pointment of librarian, etc., before the con.

To name the functionaries, therefore, was the privilege of the general assembly; and it only remains to inquire if, in doing so in this instance, the commingling of the execu tive with the administrative officers in the performance of the duty to appoint has violated any provision of the constitution. Counsel urge that the power conferred con stitutes an independent office, a board of ap pointment, and is not an addition of duties to offices already imposed; that "no one can be associated with the governor in the performance of executive duties," quoting from Gray v. State, 72 Ind. 578. We do not question the correctness of that holding, but, as we have already shown, the duty in ques

stitution, was by the legislature, and that ers delegated to the governor alone. The the same manner of appointment as to such appointment to office being generally the exoffices is proper, since the constitution. Such ercise of an executive or administrative funcis the effect, also, of the holding in State v. tion, the power must be conferred upon some Hyde, 129 Ind. 296, 13 L. R. A. 79. In this executive or administrative officer; but the we agree; not, of course, going to the ex-state geologist is an administrative state oftent of conceding that it means that, as to the ficer, elected by the people. ... The office in question, the governor shall be that office involved in this controversy does not functionary. In the case of State v. Hyde, belong to the class which must, of necessity, just cited, the controversy was as to the be filled by the governor, but it is an office power of the governor to appoint to the office created by statute, largely under the control of state superintendent of oil inspection, as of the legislature which created it, and falls against the power of the state geologist to within the constitutional provision which make such appointment, as given by the Act confers upon the general assembly the power of 1891; and it involved a construction of to prescribe the mode or manner of selecting section 1, article 15, supra. The judges, its incumbent." including Judges Coffey and Olds, who had concurred in the majority opinion in 118 Ind. and 121 Ind. and cases supra, Judge Elliott, who dissented in those cases, and Judges McBride and Miller, filling vacancies occasioned by the deaths of Judges Mitchell and Berkshire, after those cases were decided, all concurred in the following reasoning and conclusions by Mr. Chief Justice Coffey: "In this case, however, we are met squarely with the question as to whether the general assembly possesses the power to confer on the state geologist the legal right to appoint to the office involved in this suit. If it possesses such power, the judgment of the circuit court must be affirmed; otherwise it must be reversed. The solution of the question, while possibly in the nature of an extion presented for decision depends upon the ecutive duty, cannot, under our constitution, nature of the office and the construction to be be classed as executive duty, since, by that placed upon the provision of our state consti- instrument, the duty was intrusted to the leg. tution. The office is not an administrative islative department for performance by it, state office, whose incumbent is charged with or, for the purposes of this question, in the the administration of a separate department manner which it might prescribe. The conof the state government. The duties to be tention that the association with the goverperformed are such as pertain purely to the nor of administrative state officers, in the police. It is an office, therefore, which may duty charged by the law in review, infringes be filled by appointment; and, as the appoint- his prerogative, as the executive head of the ment of the incumbent is not provided for in state, rests upon the proposition that the the constitution, the case falls clearly with power of appointment in this instance is an in the provisions of section 1, article 15. executive function. We should not incline That section applies to such officers only as to the view that, if an executive function, may be appointed, and for whose appoint- the duties and responsibilities attending the ment no provision is made in the constitu- exercise of that function could be shared tion. As the incumbent of the office in ques- by administrative officers. But, as we have tion may be appointed, and as no provision shown, that is not the case before us. Nor is made in the constitution for his appoint- do we find it necessary to our conclusion that ment, the general assembly has the power to while, by constitutional permit, the appointprovide by law for the manner of his selec- ment may be made directly by the general astion. It has the power to provide that such sembly, it must be done so; for, by the plain office shall be filled by popular election, or language of the constitution, the manner is that it shall be filled by appointment. While a matter of choice by the general assembly. the appointment to office is generally the ex- This choice is not embarrassed by limitaercise of an executive or administrative func- tions or conditions, and, to render it invalid, tion, we do not think it must, of necessity, it must be so exercised as to confer it upon be made by the chief executive; for by the some one or number, incapable of its perterms of section 1, article 3, of the Constitu- formance. There is no expressed inhibition tion, the executive department of the state of our constitution to the discharge of this includes the administrative. Of course, it duty by executive or administrative officers, was not the intention that any administrative or by both classes of officers. It is the constistate officer should perform any duty prop- tutional theory of our form of government, as erly and necessarily belonging to the gov- evidenced by the association of the executive ernor of the state; but it was, we think, the and the administrative in one department of intention that such officers should have the the government (section 1, article 3); by castpower to perform such duties as should be ing the duty upon the governor of seeing that required of them by law in the administra- the laws are enforced, by administrative offition of the state governinent, where such re-cers, of course (section 15, article 5); and by quirement in no wise conflicted with the pow- the provision that" the governor shall transact

all necessary business with the officers of the | Commissioners of public printing: Govgovernment" (section 15, article 5)—that the ernor, secretary, and auditor of state. Rev. relation of the executive and the administra- Stat. 1894, § 7594. Appointment of montive subdivisions are not to be so separated ument commissioners (Acts 1887, p. 30): as to deny to the former all participancy in Governor, secretary, auditor, and treasurer. the affairs of the latter. Not only is there Regents of monument: Same officers. Acts no expressed inhibition against the associa- 1895, p. 135. State board of education: tion of the governor with administrative state Governor and various educational officers. officers in the discharge of any duty not in- Rev. Stat. 1894, 5849 (Rev. Stat. 1881, volving powers and privileges delegated by 4420). State board of health: Governor, the constitution to either alone, or to some secretary, and auditor constitute a board other department of the government; but, in of appointment. Rev. Stat. 1894, § 6711. our opinion, such association is proper, and Trustees of Purdue University: Governor, within the spirit of the provisions of the con- agricultural and horticultural boards. Rev. stitution just referred to. Section 1, article Stat. 1894, § 6176. State board of tax com3, does not deny the idea of such association. missioners: Governor, secretary, auditor, It divides the powers of government into the and two citizens. Rev. Stat. 1894, 8535. legislative department, the executive depart- Board of election commissioners: Governor ment (including the administrative"), and and two electors. Rev. Stat. 1894, § 6213. the judicial department; and it is enjoined State board of charities: Governor and six that "no person charged with official duties citizens. Rev. Stat. 1894, § 3193. Execuunder one of these departments shall exercise tive council for purchase of supplies and reany of the functions of another." It will be pairs of state house: Governor, secretary, observed that it is not forbidden that those and treasurer. Rev. Stat. 1894, $$ 7783. assigned to one department shall exercise any 7789. State bank examiner, appointed by of the functions of another within such de- auditor, with approval of governor. Rev. partment. While not agreeing that any mat- Stat. 1894, § 2938. Schoolbook commissionter intrusted by the constitution directly to ers: Governor and others, the members of either subdivision of the executive depart- state board of education. Rev. Stat. 1894, ment may be exercised by the other, we think § 5853. University visiting board: Govit entirely certain that the inhibition of the ernor and other officials. Rev. Stat. 1894, section of the constitution last referred to § 6076 (Rev. Stat. 1881, § 4577). Canvass of does not deny the exercise jointly by the election returns: Secretary, with governor. members of both subdivisions of any func. Rev. Stat. 1894, § 6282 (Rev. Stat. 1881, tion not so delegated to either alone, and § 4727). Board to examine treasury: Govconsistent with the theory that the duty in- ernor, secretary, and auditor. Rev. Stat. volves a function of government falling with- 1894, § 7670 (Rev. Stat. 1881, § 5643). Board in that department. Under the old constitu- of audit for female reformatory: Governtion, the legislature gave to the governor or, auditor, and secretary. Rev. Stat. 1894, the duty of selecting a visitor to the state's prison. It is true that the visitor was not an officer, having a voice in the control of the prison, but he was given access to the prison, and an observation of its management, with a view to advising the executive of mismanagement, and enabling him to "see that the laws were faithfully enforced." The only official existing, at the adoption of the present constitution, having a voice in the control, and whose position was by political choice, was a warden, who was chosen by the legis lature; and, at the same time, the institution was, necessarily, as it is now, one of the administrative agencies of the state, falling under the executive department of the gov. ernment. Its management was not through purely executive agencies, nor were they legislative, and they were in no sense judicial. They were of the administrative agencies of the state, subject to executive authority only so far as executive duties required the laws to be enforced by the governor. Nothing exists in the present constitution to change this unity of interest in the institution, or to take it from the list of administrative agencies of the state.

This union of interest in like agencies, where the power of control is not directed by the constitution, has for many years and in many instances been the authority for as sociating the governor with administrative officers in the performance of governmental duties, and some of them are as follows:

8256 (Rev. Stat. 1881, § 6163). This rule of associating the executive with administrative officers in the performance of supervisory administrative duties has obtained as to the president of the United States, and in the states of Alabama, Arkansas, California, Colorado, Connecticut, Dakota, Florida, Illinois, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Nebraska, New Hampshire, New Jersey, Nevada, New York, North Carolina, Oregon, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia, Washington, and Wisconsin. In the states named, the governor is a member of from one to twelve boards of the character of those of which the governor of this state is a member, as above shown. In the case of Gray v. State, supra, the question involved was upon a statute, enacted in 1872, making the governor, attorney-general, secretary of state, and treasurer of state jointly the agents of the state to scrutinize and pass upon the genuineness of certain bonds of the state, and to borrow money and pay off such bonds. It was held that the duty of these officers was not executive; and it was said: "The governor and other officers named in the act may well be regarded as constituting a board, organized by the legislature, for the performance of certain duties; and a mandate will lie against them to enforce the performance of the duties." The duties involved were ministerial

ALABAMA SUPREME COURT.

See also 30 L. R. A. 693; 33 L. R. A. 112, 744; 34 L. R. A. 201; 44 L. R. A. 261.

The Southern Building & Loan Associa- | may cancel and treat as forfeited, the said tion, duly organized under general statutes in shareholder's shares, whether deposited as accordance with statutory authority adopted collateral security or not, and all payments by-laws, providing, that the "object of this made thereon shall be forfeited to the assoassociation is, to afford its shareholders safe ciation. Time, punctuality, and strict perand profitable investments;" that "all share-formance on the part of all shareholders, in holders for every share named in their cer- the payment of premiums, fines, installments, tificate shall be entitled to a loan of $50, if interests and loans is made the essence of the the loan fund in the treasury shall warrant contract;" that "members in good standing it, and if there is no prior application;" that may withdraw the amount paid by them in "shares must be in force six months, or six monthly installments of shares, into the loan monthly installments must be paid thereon, fund, together with interest at the rate of six before a shareholder will be entitled to a per cent per annum, after giving sixty days' loan;" that "the certificate, terms and con- notice in writing, and such notice to be given ditions of the shares of this association, and after two years. the by-laws form the contract with the shareholder; the application for a loan shall form a part of the contract with the borrower, and all contracts and securities executed by the borrower shall be construed with reference to and in accordance with the laws of Ala-cuted his note therefor, and a mortgage on bama" that "persons desiring to become shareholders must make application according to the form provided for that purpose, said application forming a part and parcel of such applicant's contract with the association;""that any person may become a shareholder by signing the required application, and paying the necessary admission fee as follows:-On ten shares, $1.00 per share; over ten and under twenty-five, 75c. per share; twenty shares, 50c. per share of $50 in cash;" that "should a shareholder whose property is mortgaged to the association desire to release the same by repayment of his indebtedness, he may, on application to the association, be allowed to do so upon giving sixty days' notice of such intention;" that if any shareholder shall neglect to pay the interest or premium on his loan, or his regular monthly installments, or other fees, for three months, or in any way fails to comply with his contract, the association may compel payment of principal and interest and premiums, fines and dues, by proceeding on his note, and foreclosing the mortgage or other security, which shall at once become due and payable, and the association

Isaac Linsky, as owner of 40 shares, applied regularly for a loan of $2,000, stating, among other things, "I will also comply with all the rules and regulations of the association." He obtained the loan, and exe

amount received and interest, and credit him with all payments made. Kupfert v. Guttenberg Bldg. Asso. 30 Pa. 465; Hughes' App. 30 Pa. 471.

In Pennsylvania an unincorporated association cannot recover on the mortgage more money than was actually advanced with legal interest. Link v. Germantown Bldg. Asso. 89 Pa. 15.

Payments not ipso facto a reduction of the mortgage. The cases seem to agree that whatever application may ultimately be made of the payments they are not in the first instance and of necessity to be treated as a reduction of the debt.

Payments on shares are not ipso facto payments of so much of the mortgage debt. North America Bldg. Asso. v. Sutton, 35 Pa. 463, 78 Am. Dec. 349; Economy B dg. Asso. v. Hungerbuebler, 93 Pa. 258; Kebler v. Miller, 4 Legal Gaz. 127; Sunbury Mut, Sav. Fund & Bldg. Asso. v. Martin, 1 Luzerne Legal Reg. 147: Conrow v. Tradesmen's Sav. Fund & Loan Asso. 21 Phila. Leg. Int. 109.

If there has been no appropriation by the parties of payments on the stock to the mortgage debt, such payments cannot be lawfully set up as payments on the mortgage; they do not ipso facto con

real estate as security. The note specified that it was for a loan on 40 shares of stock with interest, and premium, and payable according to the by-laws, and he assigned his stock as collateral security for the loan, and for the payment of monthly installments required of him. Upon default the whole debt became, by the terms of the mortgage, due and payable, and the association was authorized to foreclose on the terms specified. Subsequently Linsky negotiated a loan with Anniston Loan & Trust Company, the complainant in the original bill, for $2,500, and, to secure the same, gave complainant a second mortgage on the real estate which he had already mortgaged to the said association. O. H. Parker, defendant in the original and complainant in the cross bill, is the assignee of Linsky for the benefit of creditors, and is invested by the deed of assignment to him, with all the rights which said Linsky had in the premises; he, as such assignee, and the Anniston Loan & Trust Company, the second mortgagee of said real estate, prior to the commencement of this suit, offered to pay to said association the amount due on its mortgage, provided it would allow a credit for

stitute a pro tanto extinguishment of the mortgage.
Link v. Germantown Bldg. Asso. 89 Pa. 15.
Right of third persons to require the application.

From the fact that the payments are not regarded as made ipso facto upon the mortgage debt the question frequently arises how far third persons can insist on the application being made.

Surety for borrower.

A surety for the sum borrowed has a right to compel the association to apply the value of the stock in reduction of its claim before making claim on him for payment. Massey v. Citizens Bldg. & Sav. Asso. of Paola, 22 Kan. 624.

If the terms of the mortgage provide that the value of the stock shall be deducted in case of a foreclosure from the total amount due in order to find the amount to be raised from the mortgaged property, sureties on the mortgage have a right to insist on such terms, although as between the borrower and the association it could not have been

done. Forsyth v. Hibernia Bldg. Asso. 1 Mackey,

205.

Purchaser at sheriff's sale.

Where there has been no appropriation by an un