dissenting:
I am unable to agree with the construction placed upon the statute in question by the court, and consequently arrive at a different conclusion.
I think, with the court, that under the constitution the legislature has. power to classify the counties according to their population, and provide the number that shall constitute the board by the number of votes polled. It might have adopted any other fair mode of classification. It had power to adopt the number of votes polled at the last general election prior to the term of office of the commissioners to be elected, if such a test is practicable. It had power, also, to adopt the number of votes polled at the general election two years prior to the one just mentioned. It might have adopted the number of voters registered at the last general election prior to the term of office of the commissioners to be elected. It could have limited the counties.- entitled to five commissioners to those having, at the times stated, either more or less than four thousand registered voters., or polling more or less than that number of votes.
The question here is, however, what test did the legislature of 1869 adopt ?
The legislative, not the judicial department, must make the test.
I agree, also, in the conclusion that the legislature intended to give five commissioners to counties polling four thousand or more votes, but I do not think it was intended to adopt as the basis of the number to be elected, the number of votes polled *346at the last general election previous to the term of office of the commissioners to-be-elected; that,is to say, I do not think the legislative intent was to, give Storey county but three comraissionersduring'the-yearslSSS and 1884, simply because less than four thousand votes were polled therein at the general, election of 1882, it being true that at the general election in, Í880, and prior thereto, more than that number were polled. The legislature desired to give five commissioners- to the most, populous counties, and the dividing line was drawn between those polling four thousand or more votes and those polling less. They knew, or ought to have known, that' the voting; population of any county was liable to increase or decrease,. not only during* the two years between general elections, but also between the day of any general election and the time When the commissioners’ elected would assume the duties of their offices. There is ample time in two months, as well as in-two years and two' months, to diminish the number of voters entitling a county to five commissioners to one entitled to but three.
But with knowledge of these 'facts-, no provision was made for reducing the number from five- to three, if, between the general' election and the first Monday -of 'January following-', or thereafter; the number of voters should decrease from more than four thousand to three,' two or one thousand. Provision was made, however, for -increasing the number from three to five, by appointment of the governor, after any general election at which four thousand or more should be polled for the first time. If Storey county had east' four thousand' votes at the general election in 1882, for the first time,'it would have been entitled to five commissioners, but it could have elected three only; the- other 'two must have been'added by appointment. The legislature intended to adopt a general system which, when put in practical operation, would come nearest giving five county commissioners, to counties having four thousand or'more-voters; and to the others threé. • To" accomplish their object 'the statute in question was passed. They took the votes polled at some general election as the test — not the number of - voters that any-.county might'in fact have, either before or after that election. They ought to have selected the *347election nearest, but before, the one of which the-acting cómlxnissioners were required to notify the people as to the number -of commissioners to be elected; and before voters were required fo cast their ballots. 'They ought'not to have1 required, commissioners,-in the performance of an. official duty, to act in the dark, or the people to cast ’ their votes for an officer when there is no office to fill. . "
It is true, as the court says, that respondents ought not to •hold their.offices if, at the election of 1882, there were no offices, under the statute, to he filled. But this fact does not assist us in our endeavor to ascertain the intention of the legislature -when the statute in question was passed, nor should it' keep us from considering- the facts stated, and those that follow, in attempting to arrive at a proper conclusion upon-thé ■question in hand. -
The legislature knew that, by the law then and now in force, it 'was the" official duty of the acting board of county commissioners, at .least twenty days before any general election, to cause its clerk to give notice in each" election precinct of -the offices to be filled. They knew that, subsequent to tbe time the several notices., were to be posted, and'the closing of tbe registry books, -names might .be struck from the registry; that voters, might go out of the state before election, not to return; that the votes actually polled might, and probably would, be less than the number represented by tbe registry, and consequently 'that tbe .commissioners might be misled themselves, and by their aets, honestly intended, deceive the •people, and produce confusion and 'uncertainty, if nothing-worse. Many counties in the .state cover a vast area, and contain'manjípolling places at great distances from the. county seat. A large fraction of our people are,.and in 1869 were, .disposed to migrate upon slight change of conditions. In ail the counties the only means of ascertaining the number .of voters prior to giving notice was by an examination of the registry books, .and ’ in many the polling places and registry books, are long distances away, and the méans of communica'tion are inefficient. Tbe law does not make it tbe- duty of the .commissioners to ascertain the number of. registered voters, or •make provision .’for. the necessary expense, attending the same. *348It is not the duty of the registry agents to inform the commissioners. But, suppose the aggregate registered vote in any county prior to a general election is four thousand and one votes. Every person' registered may vote on election day, and if so, according to the theory of the relator, the county is entitled to elect five commissioners, and the commissioners must give notice upon the assumption that the county will be entitled to five; and yet, who does not know that it would be little less than a miracle if four thousand votes should be polled ?
I mention these facts, and suppose this extreme case, as some evidence showing that the legislature ought not to have adopted the election claimed by relator as the time when four thousand votes should be polled to entitle any county to five commissioners, and, consequently, that they did not intend to do so.
It is true that, in this case, the commissioners might have ascertained the fact that four thousand votes could not be cast in Storey county in 1882, because less than that number were registered. But this fact does not alter the case in our endeavor to find the legislative intent.
It is the duty of courts, in construing statutes, to regard facts and circumstances, like those stated above, existing at the time the laws were passed.
But what is the reasonable, natural construction of the statute under consideration, as it is written ?
It is not in all its parts as plain as it should be.
The first portion of the section admits of but one interpretation, and is as follows: “At the general election of the several counties in this state in A. D. 1870, * * * a board of county commissioners, to consist of three members, shall be elected * * *; provided, that in any county where, at the last general election, there were polled four thousand or more votes, such board shall consist of five members.”
This part of the section is complete in itself, and deals solely with the election of commissioners at the next succeeding general election of 1870. If this provision related not only to the election of 1870, but to future elections also, there would be some room for argument as to the meaning of the words *349“ last general election.” But now they can refer only to the -election of 1868.
The legislature said, in substance, that at the next general election in 1870, a board of county commissioners, consisting of three members, should be elected in counties where, at the last general election, in 1868, there were polled less than four thousand votes; but in counties where, at the last general election, in 1868, there were polled four thousand or more votes, such board, to be so selected in 1870, should consist of five members. It seems to me there can be no escape from this construction, and the result is that for the general eléction of 1870, at least, in order that any county should be entitled to five commissioners, it was plainly provided that it must have polled four thousand or more votes at the previous general election in 1868. And is it probable that in a general law providing for the election of county commissioners for all future time, the legislature would intend to make one test as to the number to be elected for one year and another for a subsequent year 1
The next portion of the statute treats of the number of long and short term commissioners to be elected in 1870 and every two years thereafter.
“At the general election in A. D. 1870, and at such election held every two years thereafter, there shall be elected in such county one commissioner to serve upon the board * * * for the term of four years, and the other commissioner, or commissioners, as the case may be, necessary to fill the board, shall, at said election, be elected * * * for the term of two years; provided, that in any county or counties which are, or shall be, under the provisions of this act, entitled to a board consisting of five county commissioners, two of the commissioners shall be elected to serve upon the board for the long term.”
By this portion of the section, then, the legislature of 1869 provided that at the next general election in 1870, and at such election every two years thereafter, counties which then were, or which after 1870 should be, entitled to a board of five commissioners, should elect two long term commissioners. I have shown, to my satisfaction at least, that at the election of 1870 *350all 'counties which-at'the previous general election in 1868 polled four thousand or more votes, were entitled to five commissioners, and-the part of. the section just quoted made it the duty of -such counties, in 1870., to' elect two long term commissioners/ The same duty .was'imposed upon any county which, subsequent to.'.1870, should be so. entitled. If, at the election of 1870^ the test whether a county should have one of two long term'commissioners was that, af'the previous general election in 1868, it polled four thousand or more votes, then, in as much as at any general election subsequent to 1870 any county was entitled to have two long term commissioners, and consequently to five in all, if it was .in the same situation as to votes polled as was a‘county entitled to five in 1870, it seems to me to follow that; at. the .general election in 1882,-a county which at the previous, general election in ' 1880 polled four thousand votes, was entitled to two long term commissioners, and to -five in al'l. /......
But to my-mind,• in construing the statute in question, the most important portion is the following:
. . “.In any county wherein; at the last-or any future general election,; there-were, or shall bej-polled for the first time fout thousand or more votes, the board.shall be increased to five members.by appointment of the governor, and such -appointees ■shall hold their offices until the first Monday in January following the nest general election;'and at such next general '.election * * * five county, commissioners shall be elected", .as provided in this section of this act.” ■ 3
Unless the legislature used language to deceive and mislead-, this means that any county -which, at- the. election of 1868-, polled four thousand or more .votes, but elected only-three commissioners, might- have the' number increased to five by ■.appointment", the appointees tó hold'their offices until the first Monday in January following the general election in'1870-; and. any. county, wherein, at any'future general election, there should- be polled, for the first time,'four thousand or more .votes, should" have an increase in the number composing the board by the same method. ,. '
.Now, if thé theory is correct’ that ’the test of. the right to five.commissioners is that’,.in this case,.Storey cou,nty cast-four *351thousand votes in 1882, instead of 1880;.why did not the legislature require the same test in cases where, “ for the first time,” four thousand were polled ? ’
: Take an example: , Suppose at the last general election in 1882, Washoe-county had polled four' thousand votes for the first time. It is plain that it would have been entitled to five commissioners,. and it is equally certain that ■ its method of obtaining .the additional two would have been by appointment. It was not intended that the two should be elected. And yet, Washoe county would have had the' same means of ascertaining the number of votes that would be polled, as Stofey county had. at the last election in 1882.
Why did the legislature provide for the appointment of two additional commissioners,'in counties, only where’/-V for the first time,” four thousand or more votes are polled'?. Because, before the voté is polled, the number of votes to be cast cannot. b.e. known. It. may be, and probably, is, true-that the legislature did not stop to think that a county might; after polling four thousand votes* lose its population in., part and subsequently cast. less than that number, and then again poll the requisite number. But this fact does not tend to show fhat the legislative intent was to make the vote of 1882 the basis of the numbey of. commissioners the county should now have, instead.,of' the vote of ,1880. The legislature certainly did not make provision, in terms, for such a case. Should it arise — as, for instance-, should Storey county, in. 1884, poll four thousand votes — the question would then be presented whether, under the existing law,, it would be entitled to three or five commissioners.
' Although that question is not now before the court, my present impression is*and as such.only I give it, that the number of votes polled in' 1882 should be taken as the basis for. the number of commissioners to be elected in 1884, but that the words “ for the first tipie ” in the,-statute ought to be disregarded, and two. additional, ones appointed by the governor. This would, .in my present opinion, be carrying out the letter and spirit of the law. , I am satisfied, with the decision in’the Ffanningham case, y Considering the object, and scope of the law there under consideration, together with theTan*352guage used, we were, and are, of the unanimous opinion that the words ‘ ‘ last general election ” were intended to mean the last general election preceding the time when the claim for his. salary was made by the justice. I do not think they were intended to refer to that time in the statute now under discussion, but that they refer to the general election of 1868. For the reasons stated, I respectfully dissent from the opinion of the court that a judgment of ouster should be entered.