Dissenting. — I am unable to concur in the conclusion reached by the majority of the court. See. 2 of said act, providing for a commission form of government for cities having a population of not less than 2,500, provides upon the presentation of a petition the mayor by proclamation must submit the question of organization under said act at a “special” election, etc. This contemplates a change from one form of government to another. Sec. 1 of art. 12 of the constitution, quoted in the majority opinion, authorizes the legislature by general laws to provide for the incorporation, organization and classification of cities and towns in proportion to the population, and provides that cities and towns theretofore' incorporated may become organized under such general laws whenever a majority of the electors at a “gen*58eral election” shall so determine. In the majority opinion it is held, in effect, that the words “special election” as used in said act mean the same and are synonymous with “general election” as used in said section of the constitution. I am unable to agree with that conclusion. The framers of the constitution no doubt had in mind and intended the words “general election” to have the meaning given them by sec. 465 of the Rev. Stat. of Idaho. Said section is as follows:
4 4 There must be held throughout the territory, on the first Tuesday after the first Monday of November, in- the year eighteen hundred and eighty-eight, and in every second year thereafter, an election, to be known as the general election.” See. 466 of the Rev. Stat; provides that at such general election a delegate to Congress, members of the territorial legislature and county and precinct officers shall be elected. Since the adoption of the constitution the legislature adopted sec.
347, Rev. Codes, which is as follows:
“A general election shall be held in the several precincts in this state on the Tuesday succeeding the first Monday of November, A. D. 1910, and on the Tuesday succeeding the first Monday of November every alternate year thereafter.”
We find the term “general election” used in sections 347 to 353, inclusive, and in each section where that term is used it refers to the general state election held biennially on the first Tuesday succeeding the first Monday in November, when state, county and precinct officers are elected.
In Doan v. Board etc., 3 Ida. 38, 26 Pac. 167, this court held that the term “general election” meant the election at which the state, county, district and precinct officers were elected. The term “general election” as used in the constitution and statutes of other states has been defined by courts of last resort. In Westinghausen v. People, 44 Mich. 265, 6 N. W. 641, the supreme court of that state said:
“It will be seen from all this that under the constitution there was only one election which was ever referred to as a general election, and that term was used as identical with the November election, which was previously annual, and thereby made biennial. That was the only election held simultane*59ously throughout all the state for officers to represent the whole state.”
State v. Tausick (Wash.), 116 Pac. 655, was a case almost identical with the one at bar. A writ of mandate had been issued to compel the mayor of Walla Walla to call an election in that city under a statute providing for a commission form of government similar to the statute involved in this case. The constitution of the state of Washington contains a provision similar to sec. 1 of art. 12 of our state constitution, and provides that cities and towns theretofore organized or incorporated may become organized under such general laws whenever a majority of the electors voting at a general election shall so determine. The supreme court of that state held that the term “general election” as used in that constitution was an election in the city for the election of city officers, and the writ of mandate was authorized to issue commanding the mayor to call an election at said time. There the court held the term “general election” in said statute meant the general city election at which city officers were elected. Even under that decision, the writ ought not to issue in this case, as the application for the writ does not pray for the election to be held at the general city election, but that the mayor be compelled to call a “special” election at which only the one question involved in this case can be voted upon.
The term “general election,” when used in the statutes, refers to the election required to be held on the Tuesday succeeding the first Monday in November of each year. (See State v. Cobb, 2 Kan. 32; Bond v. White, 8 Kan. 333; McIntyre v. Iliff, 64 Kan. 747, 68 Pac. 633.) When the constitution commands how an act may be exercised, it prohibits the exercise of that right in some other way. The majority of the court are not satisfied with the meaning of the term ‘ ‘ general election” as clearly indicated by the provision of our constitution- and statute, but Chief Justice Stewart in his opinion has formulated the following unique definition of the term “general election”: An election “at which.the people having the general qualifications of electors to vote should have a free and open opportunity of expressing themselves upon the ques*60tions submitted.” Under that definition every special election provided for under our statute is a general election, for at all such special elections the voter has “a free and open opportunity of expressing” himself upon the question submitted. That definition does violence to the obvious and plain meaning of the term “general election” as used both in our state constitution and in our statutes. In case of a vacancy in this state of a member of the lower house of Congress, the governor, not having the power to fill the vacancy, is required to call a special election to fill the vacancy, at which election all qualified electors may vote and have a “free and open opportunity” to vote for whom they please, but that does not make such election a “general election.” A special election is one held to elect a single officer or to vote upon a single question, and such an election is not a general election. The time for holding general elections under our statute is provided for by statute, and the date for holding special elections is not provided for but fixed by the officer calling such special election as the law provides. It is not the “free and open opportunity to vote” that makes an election general, but it is an election at which the state, county, district and precinct officers are elected. Or, if it be applied to a city, the term “general election” refers to the biennial election to be held in April for the election of the mayor and other city officers.
Said act is repugnant to the provisions of said see. 1, art. 12, for the reason that it provides that the question of the change in the form of city government shall be submitted to the qualified electors at a special election, and the provisions of said section of the constitution direct that such questions shall be submitted at a “general election.”
Said act is also repugnant to the provisions of said section of the constitution for the reason that it fails to classify the cities and towns in proportion to the' population and only applies to those municipal corporations that have adopted the city form of government and have a population exceeding 2,500; whereas under the provisions of sec. 2170, Rev. Codes, cities, towns and villages containing more than 1,000 and less *61than 15,000 inhabitants are declared to be cities of the second class unless they shall adopt a village form of government as therein provided. It will be observed that cities of the second class having a population of between 2,500 and 15,000 may be villages by adopting the village form of government. Where such cities of the second class adopt the village form of government, they are by name villages and do not come within the meaning of the word “city” as used in the statute. Thus under the provisions of said act only cities containing not less than 2,500 can organize under the commission form of government, and second class cities that have organized under the village form of government are not permitted to so organize. Therefore said áet does not classify the municipal corporations which come within its provisions in proportion to the population each contains, but does classify them by name in violation of the mandate of the constitution.
Chief Justice Stewart in the syllabus of his opinion states as follows, referring to the term “cities”: “The legislature intended to make a classification according to the population, and that all cities, towns or villages having a population of 2,'590 or more might be organized” under said act. I fail to find the words “town or village” or their plurals mentioned in said act, and the learned judge who prepared that opinion thought it necessary to inject, into said act the words “towns or villages” in order to save said act and make the classification required by the constitution. Said act does not classify cities, towns and villages in proportion to the population, but simply by name, and is unconstitutional for that reason.
For the aforementioned reasons and for others which I shall not discuss here said act should be held unconstitutional and void.