dissenting.
I am unable to concur in the majority opinion, and deem the matter of such importance as to require my reasons to be stated. The majority opinion holds that a statute providing for the removal of county officers for misdemeanors in office was repealed by the adoption of the constitution of 1875, at least so far as the office of county judge is concerned.
The solution of the question presented depends upon the construction to be given certain sections of the constitution of 1875. Bearing in mind the rule that repeals by implication are not to be favored, and the rule of constitutional interpretation that the courts in endeavoring to ascertain the meaning of language used in the instrument may look to existing conditions at the time the constitution was adopted — practically a corollary of the ancient rule that courts will look to the old rule, the mischief, and the remedy — it seems to me that the intention of the constitutional convention is not difficult to ascertain. The constitution of 1866 (article II, sec. 29) provided for the removal by impeachment of the judges of the supreme and district courts and the four officers of the executive department of the state only, but gave the legislature poAver to provide for the removal of county officers and justices of the peace for misdemeanors in office by proceedings “analogous to impeachment,” as Judge Irvine says in Hopkins v. Scott, 38 Neb. 661, 669. The statute in question was enacted in the exercise of this power. The new constitution changed the impeaching body from the house to the legislature as a whole, provided a neAV court for the trial of impeachments, and added to the list of impeachable officers by making “all civil officers of this state * * * liable to impeachment.” Article V, sec. 5.
*809The majority opinion is based upon the proposition that the framers of the constitution of 1875 “classed county courts with the supreme and district courts as a part of the judicial system of the state,” and the conclusion is drawn that, while a county judge is a county officer in the sense that he is elected by the voters of a single county, he is not a county officer within the meaning of the constitution, and that therefore the statute was- repealed by implication when that instrument was adopted. This view seems to be largely based upon the provisions of sections 14, 20, art. Ill, and section 5, art. Y, of the 1875 constitution. Section 14, which is set forth in the majority opinion, confers the power of instituting impeachment proceedings upon the legislature in joint session, and provides: “A notice of an impeachment of any officer, other than a justice of the supreme court, shall be forthwith served upon the chief justice,” etc. Section 20, art. Ill, is set out in the opinion of the majority. It provides how vacancies may occur in offices created by the constitution. Section 5, art. Y, provides: “All civil officers of this state shall bé liable to impeachment for any misdemeanor in office.” These sections are the only provisions of the 1875 constitution which treat of the subject of impeachment.
In the opinion great stress is placed upon the fact that the powers and jurisdiction of county courts are enumerated in article YI of the constitution relating to the judiciary department. I can see no reason for distinguishing in tliis respect between the county court and other inferior courts or judicial officers named in the article. Section 1 provides: “The judicial power of this state shall be vested in a supreme court, district courts, county courts, justices of the peace, and police magistrates, and in such other courts inferior to the district courts as may be created by law for cities and incorporated towns.” Section 21 of the same article provides that, “in case the office of any judge of the supreme court, or of any district court, shall become vacant * * * the vacancy shall be filled by appointment by the governor,” etc.; and that “va*810cancies in all other elective offices provided for in this article shall be filled by appointment * * * in such manner as the legislature may provide.” A clear distinction is here drawn between the courts of counties and smaller subdivisions, and the higher courts of the state. The more important office of judge of the supreme court or of the district court must be filled by the governor until an election can be had, but the legislature may determine how a vacancy in the office of county judge, a justice of the peace, or a police magistrate may be filled. If the dividing line lies between the county judge and the other magistrates, as the majority think, why this distinction? Again, the district judge may hold court in any county in the state upon the request of the judge of that district. The salary of a district judge is paid by the state and is fixed in the constitution. Section 20, art. Ill, providing how offices created by the constitution shall become vacant, is not entitled in this connection to the importance given it in the majority opinion, because impeachment is only one of the six causes for a vacancy. Some of the offices may become vacant by resignation, others by conviction of a felony, and others by impeachment. It is also to be noticed that the same section provides that “the legislature shall provide by general law for the filling of such vacancy, when no provision is made for that purpose in this constitution.” It will be seen by reference to other provisions of the constitution that if a vacancy occur in the office of governor, the duty shall devolve upon the lieutenant governor, and that in case of a vacancy in the office of auditor of public accounts, treasurer, secretary of state, attorney general, commissioner of public lands and buildings, and superintendent of public instruction, it shall be filled by appointment by the governor. There runs throughout the constitution a distinct division. The executive ' and judicial offices and offices of importance and dignity, when vacant, are to be filled by the governor, and such officers can only be removed by impeachment. The cause for declaring other offices vacant may be designated by the *811legislature, and the legislature may also provide for the manner of filling vacancies.
As to county judge,- the constitution says: “There shall he elected in and for each organised county one judge, who shall be judge of the county court of such county .” Const, art. YI, sec. 15. The amount of his compensation is fixed by the legislature. He received it in a manner directed by that body, and from fees collected in the county. By no allowable stretch of the imagination can he be said to be a “civil officer of this state.” The meaning of the phrase “officers of the state,” or “state officers,” has many times been construed. While in one sense almost every county and city officer indirectly is an officer of the government of the state, used in such a connection the courts interpret the Avords “civil officers of this state” to mean officer of the state, as distinguished from those of any county, municipality, or other goArernmental subdivision. State v. Dillon, 90 Mo. 229; Opinion of Justices, 167 Mass. 599; Turner v. Cotton, 93 Tex. 559; Ex parte Wiley, 54 Ala. 226; In re Speakership, 15 Colo. 520, 11 L. R. A. 241. I can see nothing in the reasoning of the opinion as to the office of county judge Avbich is not equally applicable to the offices of justice of the peace or police magistrate. I can noAvliere find authority conferred upon this court to draw a line between justices of the peace, police magistrates, and county judges, when the constitution itself draws no such line. The argument that, if the legislature has poAver to provide for the removal of county judges, other Avise than by impeachment, it also has the power to remove judges of the supreme and district courts and state officers in like manner seems to be unsound. Where in the constitution special reference has been made to particular officers, and a special tribunal created for the impeachment of such officers, the special provisions control.
The case of Lowe v. Commonwealth, 60 Ky. 237, relied upon in the opinion is entirely consistent with these views. The legislature has no power to enact a statute such as this and make it apply to the office of supreme and district judge or state officers, because as to such officers, to quote *812from that opinion, the makers of the constitution “declared upon what grounds and in what mode an incumbent of such office may be removed before the expiration of his term,” but there is no restriction to be found as to other officers.
With respect to the quotation from the case of People v. Board of Supervisors, 40 Mich. 585: This case was decided in 1879. The opinion was written by Judge Campbell, the controversy being over whether the county supervisors had the power to change the compensation fixed by the legislature for probate judges, and it was held that the power to fix salaries lay in the legislature. The very next year the same judge, in Secord v. Foutch, 44 Mich. 89, which was an action to try the title to the office of probate judge, said: “The facts were all agreed upon, but the circuit judge, on the hearing, decided he had no jurisdiction, and dismissed the case. He did so on the ground that this court had held that the judge of probate was not a county officer, but was a part of the judiciary system of the state. Such judges are not ‘state officers’ in the sense in which that term is used in the statutes.” The former case, therefore, is no authority upon the point presented.
To sum up: The constitution of 1866 provided for the impeachment of certain officers therein named. The constitution of 1875 added to the number of executive officers, ;md provided: “All civil officers of this state shall be liable to impeachment,” etc. The statute was in force providing for the removal of county officers, as was done in this case, and nothing in the new constitution, either directly or impliedly, repealed it. It seems to argue very little practical common sense in the constitution makers to say they took the view that the cumbersome and unwieldy machinery of impeachment was necessary in order to remove a county judge for misdemeanors in office. I am satisfied that the wisdom, the experience and the sound judgment of that distinguished body of men was such that they never contemplated the possibility of such a construction of the constitution as is adopted by the majority opinion.