(dissenting). I concur in the conclusion that no vacancy exists in the office of governor, and that a lieutenant governor ought not to be elected this fall. I am unable, however, to assent to the construction given to the statute entitled “An act increasing the number of judges of the supreme court of the state of Washington,, and declaring an emergency,” Laws 1901, p. 345, in the majority opinion. I feel convinced that sound canons of constitutional interpretation impose the duty of declaring § 2 of this law void. Thei statute is already set out in the majority opinion. This section adds additional qualifications to the office of judge toi those required in the constitution, and defines and limits the duration of terms of the two1 judges appointed by the governor until the first Tuesday after the first Monday in October, 1902. The legislature has noi power to' define the term or prescribe the qualification of a judicial officer. This seems clear under the plain provisions of the constitution. If there be one rule set at rest by judicial authority — including, among other courts that have spoken upon the question, this court — it is that when the term, qualifications,, salary, or method of election of a judicial officer is prescribed in the constitution, the legislature is incompetent to change, modify or in any manner interfere with such requirements in the organic law. Thus the term cannot be abridged or extended by legislative act. In State ex rel. Dyer v. Twichell, 4 Wash. 715 (31 Pa.c. 19), this court had before it for construction the act of March 3, 1890, *347entitled “An a,et providing for an additional number of superior court judges, and declaring an emergency to-exist.” Laws 1889-90, p-. 346., This law provided for-additional superior court judges in several counties, and their appointment by the governor until the ensuing general election in November of the same year. Section 3 provided for the election of two" judges in King county,, as follows:
“At the general election in 1890, there shall be elected in the county of Spokanei one superior judge, and in the county of Pierce two- superior judges, and in the county of King two superior judges, for said counties, in addition-to the judges now provided for by law in said counties,, who shall hold their offices for the term of four years-from and after the second Monday in January, 1891.”
It will be observed that the section directed the election of the two judges in King county at the election in November, 1890, and fixed their terms for four years after the second Monday in January, 1891. The proceeding before the court, was mandamus to compel the election of the successors of these two additional judges at the November election in 1892, and the complaint of the relator was that the legislature had extended the term prescribed for superior court judges in the constitution. The court observed in determining this case:
“On March 3, 1890, the legislature passed an act providing for additional judges in the counties of Spokane,. Pierce and King. Sec. 3 of said act provides that £at the general election in 1890 there shall be elected . in the county of King, two superior judges . . in addition to thei judge now provided for by law in said county, who shall hold their offices for the term of four-years from and after the second Monday in January, 1890.’ Before the enactment of that law there had been-but one judge elected for said county of King. He was *348elected at the election for the adoption of the constitution in 1889, and, under the provisions of said constitution, his term of office will expire in January next, and his successor must be elected at the coming November election. And if the provisions of the law of March 3, 1890, above quoted, are of force, it is conceded that said successor to the judge elected in 1889 is the only one to' be so ' elected. The contention on the part of the petitioner, however, is that so much of the law above quoted as assumes to fix the team of office of the judges therein prou vided for is unconstitutional and void. The appellant contends that such provision is not only not opposed to any express provision of the constitution, but is in entire harmony with the letter and spirit thereof. To determine the right of these respective contentions is to determine the controversy at bar. If the constitution has not provided for thei terms of additional judges, which might be provided for the courts of the several counties by the legislature, it follows as of course that the legislature has full power to enact in regard,,thereto. If, on the other hand, the constitution has so provided, such provision must control, and any attempt of the legislature to change or modify the same would be absolutely void, and of no effect. Thus construing it, 'we are forced to thei con- . elusion that the constitution makers intended that the regular term of all superior court judges should be uniform, and that the regular1 incumbents of said offices should hold for the same term, not only as to its duration, but also as to the time of its commencing and ending. And we think that the additional judges to be provided by act of the legislature, when so provided, occupied exactly the same relation to the’ constitution and the term of office therein provided for as did those created by the constitution itself. If the legislature had simply provided for two additional judges for the county of King, and stopped there, thei legislation would have been effective. If this is true, it must be because the term of office and •other provisions as to salary, etc., were covered by the constitution. The constitution created the office of judge of *349the superior court. It provided that a certain number of judges should be elected. It also provided that the legislature might authorize and require the election of an additional number of judges. It does not, follow, however, as contended for by appellant, that, because the election of a portion of the judges was authorized by the constitution itself, and another portion thereof by the legislature,, that the respective portions bear any other than a common relation to all the provisions of the constitution relating to such officers. The term of office, then, of all the judges must be held to have been provided for in the constitution. If this construction of the clause above referred to is to obtain, it follows that a definite term, ending three years from the second Monday of January, 1890, applicable to- all superior court judges, whether provided for in the constitution or by legislation, was fixed in the constitution. If the constitution has thus provided definite terms, it would, of course, follow that the legislature could not change or modify the same.”
The language of the court, has been cited at considerable length here, because I am impressed with the view that its reasoning and authority should be controlling in the construction of the statute of 1901, supra, now before the court. The same care and deliberation was expressed in § 3, art. 4, of the constitution, relating to the terms and qualifications of the supreme judge, as in the section relating to the superior judge; and this is also true of the election of the judges of both courts, and the method of filling vacancies in these offices.
The majority of the court, as I understand, concludes that the legislature cannot alter or modify the terms of the judges elected, and has no power to change the method of filling vacancies in the terms, prescribed by the constitution ; and the authorities cited in the opinion fully sustain the rule. It is then announced:
*350“If, therefore, the legislature has power to increase the number of judges as occasion or convenience requires, and ■there is no. restriction upon a decrease except below five, it follows that a decrease may be had to this minimum when necessity or occasion requires, of which necessity or •occasion the legislature is the exclusive judge.”
If this be the correct rule^ the fair deduction therefrom is that the framers of the constitution intended to create five constitutional judges with fixed qualifications, duration of terms., and salaries, who should always sit with the court, and additional judges of occasion or necessity may be designated by the legislature in such numbers and ■for such times as it may deem expedient It would seem fairly to follow, also, that the legislature might, so far as any express limitation goes, appoint the additional .judges for a month, or, as here, eighteen months., or any intervening time between two. general elections. Such ■appointive judges are certainly not filling any vacancies mentioned in the constitution, for it definitely fixes the •appointing power of the governor “to vacancies” until the next general election, or, if to the end of the regular term, then that terminates in the successor who is the judge ■elected at a general election. The constitution, with much particularity and certainty, provides for the election of all judges, and very minutely fixes the power and procedure for filling vacancies. It says:
“If a vacancy occur in the office of a judge of the -supreme court, the governor shall appoint a person to hold the office until the election and qualification-of a judge to fill the vacancy, which election shall taire place at the next succeeding general election, and the judge so elected shall hold the office for the remainder of the unexpired term.”
It may he thus observed that the appointment by the .governor of the two. additional judges in the present in*351.stance was made under the act of 1901, supra, for there ivas no- vacancy filled, ending with the general election. But according to the construction of the court here1, the governor’s appointment was made for a full term created by the legislature. Then, if the legislature could create a special term in duration, its power is. necessarily plenary to. appoint judges itself, instead of authorizing .appointment by the governor, for they are legislative officers, and there would seem to. be no express restriction upon adding qualifications for the judges not mentioned in the constitution; that is, one could be from each dominant party, or any other qualification not, expressly inhibited which the legislature might deem expedient, as that some of the judges, should be socialists, and the others democrats or republicans. It is plain that these offices are elective. The vacancy is an emergency — an unforeseen event. — and must always occur at the time in an office then in existence; and it is only an interval in the incumbency of the existing office, and cannot be a vacancy if it envelopes the whole duration of the office. Somewhere in the term, in the commencement, during its course, or before its ending, there must be an elected judge. PTo executive appointment can extend beyond the next general election. Thus Judge White was appointed by Governor Rogers to. the vacancy occasioned by the resignation of Judge Gobdoh in June, 1900, but he was thereafter elected to fill the unexpired vacancy in November, 1900. Section 5, art. 4, of the constitution, relating to vacancies in the office, of superior court judge, is in identical words with the requirement for filling the vacancies in this court. In State ex rel. Linn v. Millett, 20 Wash. 221 (54 Pac. 1124), the question of filling the vacancy of superior ■court judge was determined. It was there said:
*352“The commission of the governor only entitles the holder to1 retain office until his successor is elected and qualified, and the word 'remainder’ as found in that section relates to the term existing at the date of the election, not to a term beginning some months later. Counsel for the respondent has urged upon the consideration of the court the importance of having a fixed and certain time at which elected officers shall qualify, and argues that great public inconvenience might follow if it were held that a judge elected to fill a vacancy might qualify any time after the result of the election is declared. However, the constitution plainly limits the right of the appointed judge to' hold until the election and qualification of his successor at the next succeeding general election.”
It seems to be suggested that the constitution is a limitation only upon legislative power, and that the express .limitation must be found to inhibit the power of the legislature, at its discretion, to create and define the tenure of appointive judges, while admitting it cannot interfere with the constitutional office of the original five judges. However, there is no express limitation in words on the legislative power to diminish the number of the judges below five. There is in words no such limitation as to the diminution of salaries, but all here concede such limitations exist by implication. It could hardly be success-fully maintained that the legislature could increase the court if the power to increase- had not been conferred. I understand the correct rule of construction to be that the mandate “thou shalt,” when used in directing the organization of the court and. fixing the number of its members, also implies negatively the inhibition “thou shalt not” add any other number, and it therefore required power affirmatively given to increase the number after the first organization. The sovereign powers of the state were de*353liberately distributed in framing the constitution into legislative, executive, and judicial departments. In the supreme and superior courts were reposed the judicial functions, and their organization, powers, qualifications, and terms of the judges, are defined. The independence of the court is guarded in all cases by fixed tenures of office and salaries during the terms. The convention, when vesting such functions in courts, had in view as well the future as the present of the state, and foresaw its large growth and development, and the necessity that would arise for increasing the number of judges for the courts, and it provided for such increase from “time to time” by the legislature. But it plainly intended to preserve the harmony and the unity of this court in the tenure and qualifications of its judges. I conclude that § 2 of the act of 1901, supra, and the same idea wherever expressed elsewhere in the act, is a departure from that intention, and that the plain mandate of the constitution carries with it the implied prohibition upon the creation of legislative offices such as the act of 1901 does if all its provisions are held valid.
However, the void section of this statute may be eliminated, and the law, in its substance, be valid. The title is perfect: “An act increasing the number of judges of the supreme court, and declaring an emergency.” This is-clearly within the authority of the constitution. The first section declares that after the enactment the court shall consist of seven members. Here the limitation imposed' upon the terms of the judges and the added qualifications, were beyond the power of the legislature. In State ex rel. Dyer v. Twichell, supra, — the case where the legislature-had extended the term of superior judges-, — the court de-' dared that such interference was beyond the competency *354of the legislature, hut held that portion of the statute within its competency valid, and gave effect to the law; observing that the power of the legislature was limited to providing for the increase of the number of judges. So in this case the legislature was only competent to provide the number of judges to be added to' the court. It was unnecessary and was immaterial that the act provided for their appointment by the governor, for the constitution had already , designated the method of filling the vacancies by the governor, and so it may be said of the specifications of the salaries. I understand the true rule of construction, approved by the great weight of, if not by unanimous, authority, is that if the valid exercise of legislative power can be separated from the void, and is susceptible of operation, the valid will be enforced. A few of such authorities may be mentioned here: Cooley, Constitutional limitations (4th ed.), pp. 214-216; Sinking Fund Commissioners v. George, 104 Ky. 260 (47 S. W. 779, 84 Am. St. Rep. 454); State ex rel. Attorney General v. Brewster, 44 Ohio St. 589 (9 N. E. 849); State ex rel. Goodin v. Thoman, 10 Kan. 191; Griebel v. State ex rel. Niezer, 111 Ind. 369 (12 N. E. 700). In the case of State ex rel. Law v. Blend, 121 Ind. 514 (23 N. E. 511, 16 Am. St. Rep. 411), the rule is admirably stated as follows:
“It is equally well settled that when a part of a statute is unconstitutional, if by striking from the act all that part which is void, that which is left is complete'in itself, sensible, capable of being executed and wholly independent of that which is rejected, the courts will reject that which is unconstitutional and enforce the remainder.”
I conclude that the statute here, with the void features eliminated, is clear and sensible, and should be enforced; that there is a valid increase of this court by the addition of two constitutional judges; that the two members ap*355pointed by Governor Rogers are filling vacancies contemplated by the constitution; and that their successors to fill the unexpired terms ought to be elected at the general election in November, and the writ should issue for that purpose.