Concurring. — I concur in the conclusion! reached by Mr. Justice Stewart to the effect that said provision of the constitution is self-executing or self-operative, but I am unable to concur in his statement that in the separation of the office of county superintendent of public instruction from that, of probate judge in the ease of Blake v. Board of County Commrs., 5 Ida. 163, 47 Pac. 734, a new office was created. The office of county superintendent of public instruction was. created by the constitution that created the office of probate-judge and not by the amendment under consideration in the-Blake ease. In the Blake case the duties of one office were not. transferred from the officer who performed them ex officio to. another officer then holding office who was to perform them ex officio, but were transferred to an officer to be elected to fill the office of county superintendent, and neither the constitution nor the law provided for such election, and it devolved upon the legislature to enact a law for that purpose. No new office was created by that amendment. The duties of the county school superintendent were not in any wise connected with the office of probate judge except that the probate *797.judge performed the duties of county school superintendent, and said amendment provided that the legislature should by general and uniform laws provide for a biennial election of a «county superintendent of public instruction, and the legislature had not at the date of said decision provided a general law for that purpose, or any law whatever. In the case at bar no officer is required to be appointed or elected to fill the office of tax collector. The duties of that office have only been transferred from the assessor to the treasurer.
The case of Hays v. Hays, 5 Ida. 154, 47 Pac. 732, is also relied upon by the attorney general. In that case the office of district attorney as provided for by sec. 18 of art. 5 of the constitution had been abolished by amendment. Such district attorney was elected for each judicial district, to hold office for a term of four years, and each judicial district included more than one county. The amendment adopted' in 1896 abolished the office of district attorney and provided for 'a prosecuting attorney to be elected for each organized county «of the state, for a term of two years, and to perform such duties as might be prescribed by law. No duties had been prescribed by law for the county attorney, although the duties of district attorney had been prescribed by law. The court in that case held that said amendment was not self-executing and said:
“It is no answer to say that said offices might be filled by appointment, for the amendment provides that they shall be filled by election, and not by appointment, and, until the duties of the office are prescribed by legislation, it is an office without duties, as above stated, and the amendment expressly provides that compensation shall be fixed by the board of county commissioners of the respective counties at their July session next preceding the general election. The provisions of said section clearly negative any intention of permitting the appointment of the first incumbents of such office, and also clearly -negative the intention of permitting (let alone authorizing) any person or board whatever to fix the salary of such officer prior to the month of July next preceding the general election to be held in November, 1898.”
*798As I view it, there is a clear distinction between the cases referred to and the case at bar.