DISSENTING OPINION.
Justice Baker,by virtue of section 881, Compiled Laws of 1897, files his reasons for his decision in the district court, which can be best done by quoting his opinion, filed in this cause in the district court, as follows :
“Territory of New Mexico, district court Bernalillo county.
“Territory of New Mexico on the relation of Jesus Ma. Sandoval, v. George F. Albright.
“This cause of action is based upon an information by the solicitor-general of the Territory against George F. Albright, requiring the said Albright to show by what authority of law he holds the office of assessor of Bernalillo county. For answer to the information the respondent Albright says he holds said office by virtue of an appointment by the board of county commissioners of said county, acting under and by virtue of section 3 of an act of the Legislature creating Sandoval county, approved March 10, 1903, and the amendment thereof, approved March 12, 1903. Respondent further answering, says said Jesus M'a. Sandoval was at the time of the creation of said Sandoval county a resident of the Territory comprising said Sandoval county, consequently not a resident of Bernalillo county and therefore not eligible to hold the office of assessor of said Bernalillo county. To the answer of respondent the solicitor-general files a demurrer.
“The demurrer raises the legality of said section 3 of chapter 27, Session Laws of New Mexico, 1903, and said chapter as amended by chapter 49 of said Session Laws. Said section 3 of said chapter 27 reads as follows:
“ ‘On or before the first day of April, 1903, the county commissioners of the present county of Bernalillo shall give notice of an election to be held on the fourteenth day of April, 1903, within the county of Bernalillo' as the same will be constituted after the passage of this act, for the election of two county commissioners, one probate judge and one assessor, to serve until their successors are elected and qualified at the next general election. Said officers so named in this section to be at the time of said election actual bona fide residents of the said county of Bernalillo as the same shall be constituted after the passage of this act. The returns of said election to be made as the returns of general elections are made.’
“Said amendment contained in said chapter 49 reads as follows:
“ ‘Section 1. That section 3 of the act to create the county of Sandoval approved on March 10, 1903, be and the same is hereby amended to read as follows:
“ ‘Section 3. That T. C. Gutierrez to fill the unexpired term of the second district and Severo Sanchez be and they hereby are appointed and constituted county commissioners for the county of Bernalillo as the same is constituted after the creation of Sandoval county, and said T. C. Gutierrez and Severo Sanchez shall qualify as said county commissioners on or before the fifth day of April, A. D., 1903, and shall together with the county commissioners now in office for the said county of Bernalillo', hold a meeting not later than the tenth day of April, 1903, and the said three persons as a board of county commissioners for Bernalillo county shall appoint one assessor and one probate judge for the said county of Bernalillo to serve until their successors are elected and qualified at the next general election.’
“Said section 3 of chapter 27 in effect declares vacant the office of assessor of said Bernalillo county by providing for an election of an assessor of said county. To say that it was not the intent and purpose of the Legislature in said section 3 to not declare said office vacant, it would have been more than useless for the Legislature to have provided for the election to fill said office when there was no vacancy to' fill, said office being filled by said Sandoval. Certainly it will not be contended but what the Legislature intended to declare the said office of assessor vacant. Whether they had the power so to do is another question. The Legislature, construing and acting under section 3 of chapter 27, amended said section 3 as seen by section 1 of chapter 49 of Session Laws of 1903. Therefore it must be conceded that the Legislature when it passed said section 3 intended to declare said office of assessor vacan,t and that when it enacted said chapter 49, it so construed the said section 3. To say the Legislature did not intend in said section 3 to declare said office vacant is to make the language of said section referring to the election of an assessor meaningless, as well as the provision for the appointment of an assessor by the county commissioners in said section 1.
“The demurrer raised three questions: first, had the Legislature the power to summarily remove Sandoval from the office of assessor of Bernalillo county; second, had the Legislature power to authorize the county commissioners of Bernalillo county to fill such vacancy; third, does his non-residence in Bernalillo county make said Sandoval ineligible to hold said office, or in other words, is he eligible to be reinstated?
“Section 1857, Revised Statutes of the United States 1878, provides: ‘All county officers shall be appointed or elected in such manner as may be provided by the Governor and legislative assembly of each Territory.’ Section 7 of the organic act of the Territory of New Mexico provides, ‘that the legislative power of the Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act.’ As well the legislative acts cannot conflict with any act of congress thereafter passed.
“The provision by the Legislature for the removal of county officers is certainly a rightful subject of legislation and is legal, unless prohibited by the Constitution of the United States or some act of Congress.
“It is contended that the act of removing Sandoval as assessor is in conflict with the fourteenth amendment of the Constitution of the United States, which is as follows:
“ ‘No State shall . . . deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the eqnal projection of the law.’
“It is contended by the learned counsel for the solicitor-general that Sandoval had been deprived of his property without due process of law. In other words, Sandoval’s title to the office and its emoluments for the full term of two years was a vested right which is protected by said fourteenth amendment, unless said Sandoval was removed by a court of competent jurisdiction after having had a fair and impartial trial and a full opportunity to make his defense, and in support of this proposition of law, the learned counsel cites Kennard v. Louisiana, 92 U. S. 480; Foster v. Kansas, 112 U. S. 201.
“Did the Supreme Court of - the United States in Kennard v. Louisiana, or Foster v. Kansas, supra, thus declare the law? In the celebrated Goebel case, entitled Taylor and Marshall v. Beckham, 178 U. S. 548, quoting from page 571:
“ 'So in Kennard v. Louisiana, 92 U. S. 480, concerning the right of Kennard to the office of associate justice of the Supreme Court of Louisiana, jurisdiction was taken on the ground that the constitutionality of the statute under which the disputed title to office was tried was drawn in question. The court, speaking by Mr. Chief Justice Waite, said: 'The question before us is, not whether the court below, having jurisdiction of the case and the parties, have followed the law, but whether the law, if followed, would have furnished Kennard the protection guaranteed by the Constitution. Irregularities and mere errors in the proceedings can only be corrected in State courts. Our authority does not extend beyond an examination of the power of the courts below to proceed at all.’ ”
“The writ in Foster v. Kansas, 112 U. S. 201, rested on the same ground.
“In each of the foregoing cases, the determination of the right to the office in dispute was reposed in the judicial courts, and no question was expressly considered by this court as to whether the right to a public office of a State was or was not protected by the fourteenth amendment.
“In North Carolina, the Legislature created the office of State railroad commissioner. The statute also provided that such 'officer might be suspended by the Governor and his successor appointed by the Governor.’ In Wilson v. North Carolina, 169 U. S. 593, the Governor removed by suspending without a hearing, Mr. Wilson as State railroad commissioner and- appointed one Caldwell to fill the vacancy. Mr. Wilson contended this was in conflict with the fourteenth amendment of the Constitution of the United States. In this case the court said:
“ 'What kind and how much of a hearing the officer should have before suspension by the Governor was a matter for the State Legislature to determine, having regard to the Constitution of the State. The procedure provided by a valid State law for the purpose of changing the incumbent of a State office will not in general involve any question for review by this court.’
“The court further said:
“ 'No such fundamental rights were involved in the proceedings before the Governor. In its internal administration the State (so far as concerns the Federal Government) has entire freedom of choice as to the creation of an office for purely State purposes, and the terms upon which it shall be held by the person filling the office.’
“The court further said:
“ 'Although an office has been held in North Carolina to be generally and in a certain restricted sense the property of the incumbent, yet in this case the. Supreme Court held that the incumbent, in taking the office, holds it subject to the act creating it, which binds him by all its provisions, all of which were held to be valid.’
“In Taylor and Marshall v. Beckham, supra, discussing the relation of an officer to the appointing or electing power, the Supreme Court of the United States-says:
“ ‘In Grenshaw v. United States, 134 U. S. 99, 104, Mr. Justice Lamar stated the primary question in the case to be: “Whether an officer appointed for a definite time or during good behavior had any vested interest or contract right in his office of which Congress-could not deprive him,” and he said, speaking for the court: “The question is not novel. There seems to be-but little difficulty in deciding that there was no such interest or right.” Butler v. Pennsylvania, supra; Newton v. Commissioners, 100 U. S. 584; Blade v. United States, 103 U. S. 227, and many other cases.
“ ‘The decisions were numerous to the effect that public offices are mere agencies or trusts, and not property as such. Nor are the salary and emoluments property, secured by contract, but compensation for services actually rendered. Nor does the fact that the Constitution may forbid the Legislature from abolishing a public office or diminishing the salary thereof during the term of the incumbent, change its character or make it property. True, the restrictions limit the power of the Legislature to deal with the office, but even such restrictions may be removed by constitutional amendment. In short, generally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right.’
“In Long v. The Mayor, 81 N. Y. 426, the court says:
“ ‘It is claimed that the act in question shortens the duration of plaintiff’s term of office, so that the term declared by statute, in force when he was elected, to be-for two years, is made by the act of 1870, a term for five months. We see no legal objection thereto. The office was not created by or regulated in any manner by the Constitution. The Legislature had entire control over the matter. The office was created its term was fixed by that body, and it could be changed by it. The law could be amended or repealed, and this was the effect of the provision of the act of 1870. A term ending at a time stated was substituted for a term limited to two years. The original term was thus shortened. The legislation was aimed at the office, not the incumbent. But however viewed, the act complained of was within the lawful exercise of power by the Legislature and within the principle frequently reiterated by the courts of this State, that a public office is not a grant, and the right to it does not depend upon, or partake of the nature of a contract. Connor v. Mayor, 2 S. and F. 355, 369; affirmed, 5 N. Y. 285; Smith v. Mayor, 37 Id. 518.’
“In 44 Missouri 129, the court says:
“ ‘In England offices are considered incorporeal hereditaments, granted by the crown, and a subject of vested or private interests; not so in American States. They are not held by grant or contract, nor has any person a private property or vested interest in them/ citing a long list of cases.
“The proposition that a public office created by legislative enactment is not a vested right is well settled. Taylor v. Beckham, supra; Wilson v. North Carolina, supra; Butler v. Pennsylvania, 10 Howard 402; State v. Davis, supra; note in Hoke v. Henderson, 25 Am. Dec. 701; People v. Squires, 14 Calif. 12.
“This last citation is strikingly in point. It in effect removes one officer and puts another person in his place to continue in that office and to receive its emoluments, without a hearing and without being permitted to offer any defense. State v. Douglas, 7 Am. Dec. 87 and note; Denver v. Hobart, 10 Nev. 30; People v. Haskel, 5 Calif. 387; People v. Hurlbut, 24 Mich. 44, 9 Am. Dec. 103; Conner v. The Mayor, 5 N. Y. App. 285.”
“In the last case the court said:
“ ‘Where an office is created by a legislature, it is wholly within the control of the Legislature, the term, the mode of appointment and the compensation may he altered at pleasure, and the latter may even be taken away without abolishing the office. Such extreme legislation is not to be deemed probable in any case. But we are not discussing the legislative power, not its expediency or propriety. Having the power the Legislature will exercise it for the public good and it is the sole judge of the exigency which demands its interference.’
“In Territory v. Van Gaskin, 6 Pac. 30, the Legislature of the Territory of Montana enacted the following law:
“ ‘That the offices of county commissioners of the county of Custer be, and the said offices are, hereby declared to be vacant, and no official duty shall be- performed by the persons constituting the present board of county commissioners, except to make reports..... and that William Van Gaskin, George M. Miles and Thomas J. Ryan are hereby appointed commissioners of Custer county.’
“The court in this case said:
“ ‘By the enactment of the law appointing the respondents to the office declared vacant, until the commissioners thereafter to be elected' assumed the duties of their office, the Governor and the legislative assembly acted within the limits of the act of Congress which required that the county officers should be appointed or elected in such manner as they might provide. The Governor and legislative assembly have the power to provide the manner of the appointment; therefore, they had the power to appoint directly.’
“The foregoing citations and quotations settle the proposition that a public office is neither property, nor in the nature of property, nor a private, vested right that is protected by the fourteenth amendment of the Constitution of the United States. There are a number of authorities that hold differently. The States of Florida, Georgia and North Carolina very pointedly and conclusively are in conflict with the line of authorities herein cited. The courts of the Territories are hound by the decision of the Supreme Court of the United States. Even if it were a fact, which I do not admit by any means, that the reasoning as well as the justice would be on the side of the holdings of the States of Georgia, Florida, North Carolina and some others, still I would be bound to follow the decisions of the Supreme Court of the United States, and in the language of Sandford, J., in Conner v. The Mayor, supra.
“ ‘We are now discussing the legislative power, not its expediency or propriety. Having the power, the Legislature will exercise it for the public good, and it is the sole judge of the exigency which demands its interference.’
“I am of the opinion that the Legislature has the power to terminate the tenure of any officer holding an office created by the Legislature; therefore the Legislature had the power to remove or legislate Sandoval out of the office of assessor of Bernalillo county, and in so doing they did not act derogatorily to, nor was their legislation in conflict with the fourteenth amendment of the Constitution of the United States, as contended by the learned counsel for the solicitor-general.
“This brings us to the second proposition: Had the Legislature power to fill the vacancy caused by the removal of Sandoval.
“This question was by me decided in the case of the Territory ex rel. Curran et al. v. Gutierrez et al. It was contended in that case by' the learned counsel for the solicitor-general, as it is also in this case, that it required a general law to fill vacancies, otherwise such act of the Legislature would be in conflict and therefore prohibited by the last paragraph of the act of Congress, commonly called the Springer Act, which reads as follows:
“In all other cases where a general law can be made applicable, no special law shall be enacted in any of the Territories of the United States by the Territorial Legislature thereof.’
“This case is one which belongs to the ‘in all other cases.’
It is also contended that the Legislature, section 1, chapter 2, Laws of New Mexico, 1901, by general law fixed .the manner of filling vacancies in county offices, and, therefore, that this law is in conflict with the said section 1, as well as in conflict with said paragraph of the Springer Act. It certainly could not successfully be contended that if the Legislature had passed a law that the Legislature should fill all vacancies occurring in county offices, that it would have been in conflict with said paragraph of the Springer Act for the reason that it would be a general law. Did not the Supreme Court of Montana, in Territory v. Van Gaskin, supra, speak wisely when it said: ‘The Governor and legislative assembly have the power to provide the manner of appointment; therefore, they had the power to appoint directly.’ Section 1877 of the Compiled Laws of the United States, supra, provides, ‘that county officers shall be appointed or elected in such manner as may be provided' by the Governor and the legislative assembly.’ Did they not in this case provide the manner the office of assessor of Bernalillo county should be filled? Would it not seem a little absurd for the Legislature in which all power is conferred by Congress to say in what manner county officers shall be appointed or elected, to spread upon its statute books an act saying the Legislature may fill county offices or vacancies when the power already rests with it? Would it not be like unto a man getting permission or authority from himself to do or not to do a specific thing, which was his duty to do or not to do?
“In Territory ex rel. Smith v. Scot et al., 20 N. W. 401, the question of the Legislature delegating its appointive power to others was squarely raised. The court said:
“ ‘The act of the Territorial Legislature passed March 8, 1883, removed the seat of the government of the Territory from Yankton and authorized certain persons therein named as commissioners to select some other city as the capital and locate the seat of goverment at the'place so selected, is not in conflict with the organic act of the Territory, in that it delegates to such commissioners a duty that could only be lawfully performed by the Governor and the legislative assembly; nor in that it appoints and designates such commissioners instead of leaving their appointment to the Governor, by and with the advice and consent of the legislative council, upon his nomination, and such commissioners are lawfully entitled to exercise the duties and powers conferred upon them by such act.’
“In the case of Waterman v. Freeman, 80 Calif. 233, 22 Pac. 173, the Constitution of California is construed, which reads as follows:
“ ‘All officers or commissioners whose election or appointment is not provided for by this Constitution and all officers or commissioners whose offices or duties may hereafter be created by law shall be elected by the people or appointed as the Legislature may direct.’
“This language is so strikingly like the. provisions in section 1857 of the Compiled Laws, supra, that a construction of the California Constitution would certainly be of great assistance and throw considerable light upon the construction of said section 1857. The office under consideration in this case was one created by statute and it was filled by the Legislature acting directly, without having passed any general law or any other provision other than simply the assembly appointing the officer. A comparison of the two provisions are so strikingly similar that if the legislative assembly of California could fill an office under that provision, then certainly, by the same course of reasoning, the Territorial assembly could fill such offices as contemplated by said section 1857. In other words, they maintained, as well as many other authorities, and certainly it is the opinion of the court in this case that the power to create an office implies the power to fill such office. It would be folly to grant the power to create with no means provided for the filling of such offices. It is true there is no expressed power granted by Congress to the Territory to fill vacancies in office. But certainly we have a right to assume that no one will contend but what there is a power somewhere to fill vacancies in an office that has been created by the legislative power of the Territory and the office once legally filled. It must be conceded that all power we have in the Territory to create county offices and to provide the manner in which such offices shall be filled, either by appointment or by election, is embodied in the one section of the act of Congress, section 1857, supra. Therefore, the legislative power must provide first the office and then the officer, through an election or appointment in the manner provided by the Legislature. All the authority the Territory has conferred upon it to fill vacancies in office is implied in the general power given the legislative power as contained in said section 1857. Therefore the legislative power is authorized to fill vacancies. The manner of filling them is left to the Legislature to provide. And if it can provide a manner, such manner may be by direct appointment, it may be conferred upon the people to elect, it may be conferred upon the Governor to appoint or it may be conferred upon county commissioners to appoint as in this case.
“It.is contended by the learned counsel representing the solicitor-general, that chapter 2 of the Laws of New Mexico of 1901, precludes the Legislature from filling vacancies, either by direct appointment or by appointing a commission to fill vacancies in county offices. It will be observed that said provision provides that the Governor shall appoint when a vacancy shall occur ‘by reason of death, resignation or otherwise.’ The vacancy in the office of assessor of Bernalillo county was not caused by death, nor resignation. How about the term ‘otherwise?’ Does that include a vacancy caused by legislative removal, is it to be taken in its broad sense so as to include any and all vacancies not caused .by death or resignation? We might inquire why the legislative power delegated to the Governor the authority to fill vacancies at all. Certainly the Legislature would not have delegated such power had there been a vacancy occurring while the Legislature was in session. The session of the Legislature being limited by law to sixty days, that leaves the balance of two years in which no vacancy could be filled unless such power to fill had been delegated to some person or persons. If no provision had been made by the legislative power to fill vacancies, could they have been filled? Yes, by the legislative power and by it only. If the Legislature intended that any vacancy that might occur shall be filled by appointment by the Governor, why should it specifically point out vacancies caused by death or resignation? It would be a serious charge against the legislative intelligence that it meant any vacancy that might occur shall be filled by appointment by the Governor after employing the language they did. If the word ‘otherwise’ is to be .construed to mean any vacancy, then the words ‘by reason of death or resignation’ were surplusage and must stand for naught, because they are included in the words ‘any vacancy.’ We believe it to be a universal rule of construction that when general words follow particular and specific words, the general words are confined in meaning to the things of like kind and nature designated by the specific words. Sutherland on Stat. Con., sec. 286; Jenson v. State, 19 N. W. 378 (Wis.); State v. Dennison, 82 N. W. 385 (Neb.); Roberts v. Jackson, 4 Yerg. (Tenn.) 322; State v. Wood County, 72 Wis. 637.
“In each of these cases, the word ‘otherwise’ followed specific terms and was construed to mean other things of like kind and nature. In the case of State v. Wood, supra, the Wisconsin statute provided, referring to county road tax, ‘which shall be expended under their (county board) direction, in making culverts, grading, graveling, ditching or otherwise improving such highways.’
“The Court said:
“ ‘By a familiar rule of construction, the words “or otherwise improving such highways,” must be held to mean the improvement of such highways by making culverts, grading, graveling, ditching or other improvements of a similar character, and not to the building of a bridge.’
“In Jensen v. State, supra, the statute provided, ‘If any tavern keeper, or other person, shall sell, give away or barter any intoxicating liquors,’ etc. The court construed the words ‘other person’ to mean not anybody and everybody, but following the words ‘tavern keeper,’ ‘indicate very clearly the class of persons against whom the act was aimed and the general words “other persons” must under the familiar rule noscitur a sooiis to be taken to mean a similar class of persons and not to be extended so as to include all persons.’ And the court cites a long list of authorities in support of their construction.
“In the Nebraska case, the law provided, ‘If any person shall open or establish, as owner or otherwise, any lottery or game of chance in this State,’ etc. . In construing the term ‘otherwise’ as used in this connection, following the word ‘owner,’ it was restricted to the meaning of ‘owner’ or some one in similar or like capacity.
“We do not hesitate to say that wherever the word otherwise is used, following specific terms, that no authority can be found that will give it its broad significance when used by itself, but that they restrict it to the meaning of the specific words and terms preceding it. Apply that rule of construction to the-said chapter 2 and what is the meaning of the word ‘otherwise following the words ‘whenever any vacancy shall occur by reason of death, resignation or otherwise, and you will have the word otherwise’s meaning, a vacancy caused by death or resignation, or vacancies caused in a similar manner; possibly instead of death, dementia; for example, instead of resignation, a man picks up and hies to other countries; he has not resigned; he has not been removed, but he has quit and it is of similar kind and character as resignation. And again, by implication, at least, the Legislature has interpreted said chapter 2 by enacting section 1 of chapter 49. A legislative interpretation of a statute is not binding upon a court but should have great weight. Jackson v. Board of Supervisors, 34 Neb. 680; Constant v. People, 6 Wendall 511.
“I am, therefore, of the opinion that the act of the Legislature, viz., section 3 of chapter 27, and section 1 of chapter 49, is legal and that the Legislature acted within its scope and power.
“The other question raised by the demurrer, to-wit, whether or not Sandoval’s non-residence of the present Territory of the county of Bernalillo makes him ineligible to be reinstated as assessor of Bernalillo county, is not necessary for me to pass upon in thip action, for the reason heretofore given as to the legality of the statute passed by the last Legislature.
“For the reasons hereinbefore given, the demurrer is overruled and should the solicitor-general stand upon his demurrer, the information will be dismissed.
“By the court.
“Benj. S. Baker, Judge.”