concurring specially. I concur in the rulings made. I deem it proper to say that the expression in the last part of the opinion, “and the office was not vacant,” should be explained. Under the law, the previous term extended over until a' successor of the occupant was elected and qualified, and in that sense there was no vacancy. The incumbent officer was merely extended in his previous term; but as to the ensuing term in this case, from January 1, 1929, to January 1, 1933, there was a vacancy, because no person legally qualified to hold the office had been elected for that term. “The word ‘vacancy as applied to a public office has no technical meaning. Its ordinary and popular meaning is that the office is unoccupied and without an incumbent who has a lawful right to continue therein until the happening of some future event. As a general rule, when a new office is created, a vacancy at once exists. Hence the term ‘vacancy' applies to an existing office without an incumbent, although it has never been filled. Eor example, when a new county is created, the offices, before they are filled, are considered as being technically vacant. An office is not vacant so long as it is supplied in the manner provided by the con*627stitution or law with an' incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it; and, conversely, it is vacant in the eye of the law when it is not occupied by a legally qualified incumbent, who has a lawful right to continue therein until the happening of some future event. A distinction may be drawn between a vacancy in office and á vacancy in term. By a vacancy in an office is usually meant that the office is empty, and that it is without an incumbent who has a right to exercise its functions and take its fees or emoluments. . . A vacancy may occur so as to permit the appointing or electing power to appoint or elect some person to the office, although the incumbent continues physically to occupy it, and has the right to do so until the qualification of his successor. The power to fill vacancies in elective offices is sometimes vested in an appointing officer. In such cases and for the purpose of making a temporary appointment to fill vacancies, something more is required than the mere absence of any incumbent in the office. The mere expiration of the term of the incumbent does not create a vacancy which can be filled by such appointment. Especially when it is provided that there shall be a new election in the case óf a tie vote, the failure of an election by reason of the fact that the opposing candidates have an equal number of votes will not constitute a vacancy to be filled by appointment for the residue of the term.” 22 R. C. L. 437-8, §§ 91-92. This is in accord with Shackelford v. West, supra. In that case the successor to Judge West was supplied by appointment of the Governor and to be confirmed by the Senate. The Senate adjourned without acting upon the appointment. Thereafter the Governor appointed and commissioned Shackelford, and under such appointment he claimed the office. The court held that the term of office of .Judge West extended until his successor was appointed and qualified, and since the successor had not been confirmed by the Senate, and therefore had not been able .to qualify, that the term of office of Judge West extended over until there was such duly appointed and qualified successor, and in that sense there was no vacancy to which an appointment could be made in vacation. The court did not hold, and could not have held, that there was no vacancy in the ensuing term of .office which could not be filled by appointment when duly confirmed by the Senate. In Stephenson v. Powell, supra, the same general language was used as to vacancy. *628In that case Stephenson was elected by the grand jury as a member of the board of education, March, 1926, for a term of four years, the term therefore ending in 1930. On April 3, 1929, the judge appointed Powell to fill what he supposed to be a vacancy. The term of Stephenson had not expired, and before such expiration, on May 18, 1929, Powell at that time contending that he was legally entitled to serve from the date of his appointment, the judge revoked the order appointing Powell. Stephenson’s term still had not expired. In the contest over the office this court used the general term that no vacancy had occurred. Under the facts Stephenson’s term, at the time the suit was filed and heard, had not expired.