dissenting.
I disagree with the result obtained by the majority opinion, but even more with the means utilized to obtain that result. The majority opinion recognizes that the office of county sheriff is created not by statute, but by our Idaho Constitution. It is an elective office. The majority therefore suggests that the county sheriff indeed has the power to appoint deputies and other personnel to carry out the functions of the office of sheriff as directed by the elected official. What the majority gives with one hand, however, it immediately takes away with the other by its draconian pronouncement that the power to appoint can and is rendered a nullity because all positions are filled, and hence no appointments can be made. In my view such a ruling defies logic, and is contrary to the intent of our Constitution in designating the office of sheriff as a constitutional officer.
The majority opinion makes much of the provisions of the state employee personnel system as established by I.C. § 67-5301. There is much that the majority neglects in its description of that legislative scheme. As indicated in I.C. § 67-5301, a personnel system is established “for classified Idaho employees.” I.C. § 67-5303 exempts from that system of personnel administration all employees and officers of the governor, lieutenant governor, secretary of state, state attorney general, state treasurer, state auditor, and state superintendent of public instruction. In short, the employees of state offices designated by the Constitution. Also exempted are all judges, temporary referees, receivers, jurors, and all employees of this and the district courts. Also exempted are officers and members of the teaching staffs of state institutions, and a host of other state agencies. Today’s opinion of the court that constitutional officers may employ whom they please, but may not terminate employees hired by predecessors in office, may come as a rude shock to those holding elective offices in the legislative, executive and judicial branches of Idaho’s state government.
In my view, our legislature has instituted a personnel system directed toward stability in employment, which at the same time recognizes the constitutional mandate that certain elective officers must be free to institute and carry out their own programs with their own personnel. Such, I believe, is not only constitutionally mandated, but a recognition of the practicalities of political life. To argue that a constitutional office holder must maintain as trusted employees those very people who sought to prevent him from obtaining the office, begs reality. However, that is the effect of the majority ruling of today.
In my view, the legislature in its enumerated exemptions from the personnel act, has only recognized that which is constitutionally prohibited to it, i.e., the invasion of the necessary authority of other constitutionally established officers of the state. I suggest that any inference of a spoils system in the instant ease is inappropriate.
Although Gowey v. Siggelkow, 85 Idaho 574, 382 P.2d 764 (1963) did not deal with a constitutionally created office (in that case the chairman of a village board of trustees), nevertheless, the Court, as quoted by the majority, stated:
Indeed, even where the power of removal is not expressly conferred, the general rule is that a grant of the power to appoint is construed to carry with it, by necessary implication, a grant also of the unconditional power to remove, if the term of office is not fixed by law and the right to remove is not in any other manner restricted.
85 Idaho at 591, 382 P.2d at 776.
Consistent therewith, I would hold, as does the majority, that the constitutionally *916elected sheriff, as a necessary power of his office, is granted the power to appoint. Following therefrom is also the unconditional power to remove. To suggest, as does the majority, that one branch of county government, i.e., the county commissioners, should be able to, and can, mandate who the constitutionally designated and publicly elected county sheriff will employ to carry out his constitutional duties and responsibilities, in my mind begs reality.
In the instant case the county commissioners have instituted a “personnel system” which in practical effect prohibits a constitutional officer, the sheriff, from hiring his own staff. If a county sheriff were to institute “security clearances” and thus inhibit employees of the county commission from entering the courthouse, we would undoubtedly peremptorily strike down such action. No less would we tolerate any action by the legislature attempting to circumscribe this Court’s authority to hire our own employees.
Contrary to the assertions of the majority, the instant case has nothing to do with good government, or a corrupt or inefficient branch of government. Rather, it has only to do with the constitutional power of an elected official. To state that a constitutional officer may hire whom he pleases, but may not fire whom he pleases, I suggest flies in the face of logic and common sense.