As we have concluded that the legislative appointment under which the respondent now exercises the office of regent is null and void by reason of conflict with the constitution, it is unnecessary to pass upon any other question.
He admits, what is clearly the case, that eventually all the regents must be elected by the people, but he claims that the act of 1891 (Stat. 1891, p. 77) appointing him, merely increases the number of regents from three to five, which the legislature had the Tight to do; that at the election in 1894, when the people elect a new attorney general, they will also elect, ex-officio, a regent, which will comply with the requirements of the constitution, and that the present appointment for the balance of his term of office, which it will be noticed extended over the election of 1892, is simply a temporary one for the purpose of putting the new system into operation, which, under the case ofState ex rel. Clarke v. Irwin, 5 Nev. 111, the legislature had power to make.
Where, as in that case, a new county is organized, or as inState ex rel. Rosenstock v. Swift,11 Nev. 128, a municipal corporation is created, it is necessary that in some manner a set of officers should be provided prior to the holding of an election, for there can be no election without officers to hold it. *Page 526 Although without incumbents, the offices have been created, and this presents the ordinary situation of a vacant office. Notwithstanding the language of the constitution that an officer shall be elected by the people, which must be generally followed, it could hardly have been the intention that this should apply under any and all circumstances, for it takes time to call an election; and it would often block the wheels of government for an office to remain vacant until an election can be held and the result ascertained, even if one could be held at all without the office being first filled. (State ex rel. Bull v. Snodgrass,4 Nev. 524; Peo. v. Fisher, 24 Wend. 219;Peo. v. Snedeker, 14 N.Y. 52.) This court concluded that the cases of State v. Irwin,supra, and State v. Swift, supra, presented some of the excepted instances, and the appointments there questioned were accordingly upheld. But as these exceptions are contrary to the language of the constitution, and only to be justified by the exigencies of the situation, this principle should not be extended farther than to the cases that reason forces us to conclude the constitution makers did not intend to be brought within the general rule, that the incumbent of the office must be elected. The exception should not be extended to the creation and filling of unnecessary vacancies, nor should the appointments so authorized be allowed to extend beyond the time when, in the regular course of elections, they can be filled by the people.
In the case of State, ex rel. Perry v. Arrington,18 Nev. 412, the legislature of 1883 had provided that the terms of the assessors, which were then but two years, should be extended to four years; that the first election for assessor under this law should take place in 1886, and that the terms of the assessors then in office should be extended over the next election and up to January, 1887. It was sought to justify this legislative appointment upon the same ground urged here, that the legislature had the power to make it for the purpose of putting the new system into operation. The court however said, speaking of the cases already cited here: "We do not deny that the legislature may make provisional appointments if necessary, in order to put a new system into operation. Offices that must be permanently filled by an election, in cases of emergency, may be provided for temporarily by other means. The constitutional mandate does not apply to such exceptional cases. Clark v. Irwin shows that certain parties were named us county officers *Page 527 in the bill creating the county of White Pine, to hold until the next general election. Irwin was designated as sheriff. The court held that the statute did not violate that part of the constitution which requires county officers to be elected by the people, because the office was filled only temporarily by the legislature until the nest general election, and that the constitutional mandate did not apply to eases of emergency or special occasion. Such is the undoubted law, but it does not apply to the statute under consideration. In this case there was no emergency or special occasion calling for extraordinary action on the part of the legislature. The several incumbents of the office had been elected for two years, under a general law which required their successors to be elected by the people at the general election in 1884. Before the expiration of the term for which they were elected there would be a general election at which their successors could be elected in the manner and form provided by the constitution. If it was desirable to change their terms of office from two to four years, still there was nothing to hinder the election of their successors at the general election in 1884."
This language undoubtedly states the law, and is decisive of the case in hand. The doctrine of State v. Irwin does not apply here, because, first, there was no special occasion or emergency that justified or called for the legislative appointment of a new regent. There was a board of regents already in existence, presumably at least, able and willing to discharge the duties devolving upon them. If it was proper, and the legislature had the power to increase the number of regents, still there could have been no crying necessity for its being done before the next election. The affairs of the university could in the mean time be attended to by officers elected by the people, and whom they must have thought when they elected them, fully capable of so doing. It is not the case of an office that must be filled before the public business can go on, Secondly — No such special occasion or emergency could possibly exist longer than to the next election, at which time the office could be regularly filled by the people. This must certainly be so, unless we admit that there is some peculiar connection between the office of attorney general and that of regent that makes it necessary that each should be filled by the same incumbent, which there is no reason to suppose is the case. *Page 528
To hold otherwise would be to make the university the foot ball of the legislature. If this appointment, extending over nearly four years, is valid, there is nothing to prevent the next legislature, if the composition of the board does not suit them, from making all the other state officers ex-officio regents. There is no reason to suppose that the power once admitted would stop with them, but might extend to county officers and to others. But if, in accordance with the requirements of the constitution, we hold that the regents must be elected by the people, this places the institution upon a sure and safe foundation that should eventually lead to the careful scanning of candidates and the election of the best men for the positions.
I concur in the judgment.
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