On Petition for Rehearing.
Per Curiam.A petition for rehearing filed by respondent’s counsel in this case calls attention to an inadvertent misstatement in the opinion of this court in the clause, “It is conceded by respondent in this case that the county commissioners were without power to remove defendant from office, and that the part of their resolution reciting that after December 24, 1908, defendant, Beck, was not a resident of McLean county, is without evidential force.” It is apparent, from an examination of respondent’s brief, that this clause is inaccurately framed, and should have read: “It is conceded by respondent that the county commissioners were without power to remove defendant from office. The part of their resolution reciting that after December 24, 1908, defendant, Beck, was not a resident of McLean county, is therefore without evidential force.” While it is true that respondent does not concede that the preamble to the commissioners’ resolution referred to in the opinion is without evidential force, it is obvious that such is the case. Bespondent’s contention in his brief, and also upon his motion for rehearing, is that under the provisions of § 2339, Bev. Codes 1905, after the division of a county it becomes the duty of the board of county commissioners of the original county to inquire into *17and determine what offices have become vacant by the segregation of a part, in order that any vacancies found to exist may be filled; and that a finding of fact made in the course of an official inquiry instituted in the performance of that duty carries with it at least prima facie evidence of truth. The authority for such inquiry respondent claims is necessarily implied from § 2339, which reads as follows: “The county commissioners of a county from which a portion segregates under this article shall immediately after such segregation redistrict their county into the districts provided for by the laws then existing and shall fill the vacancies occasioned by such segregation in the manner provided by law for filling vacancies.” A reasonable construction of this section, according to its terms, discloses no additional duty required of the county commissioners except that of creating new commissioners’ districts when rendered necessary by the division of the county. If in performance of this duty it incidentally appears that the office of county commissioner or possibly some other of the county offices are vacant by reason of the division, the board is required to fill the vacancy. If the purpose of the statute is to require as a duty of the county commissioners an inquiry into the fact of vacancies in office, the means under which such inquiry could be fairly and justly made would certainly be provided, including, among other important incidents, notice to the party whose office may be declared vacant. No such notice is provided for; neither is an orderly procedure of any kind governing the conduct of such inquiry indicated or suggested. The evident purpose of this statute is to provide only for redistricting the county after the segregation of a part, and the power of the county commissioners to inquire into or declare a vacancy in office is in no manner extended by its provisions. As any evidential force to be' given the finding of the county commissioners that a vacancy existed depends wholly upon whether it was made as the result of an inquiry which the commissioners were authorized or required to institute, it follows that under the facts of this case such finding is wholly without weight either as a direct or presumptive means of proof.
Counsel in his petition for rehearing also attacks the reasoning of the opinion to the effect that the evidence submitted of respondent’s appointment is insufficient to establish prima facie his title to the office or to raise a presumption that a vacancy existed in the office. His contention is that the record of the action of the county commissioners *18made by tbe county auditor on his minutes is an ample and sufficient compliance with the statute requiring that an appointment to fill a vacancy he made in writing, and dispenses with the necessity of a formal written commission. In the view of the writer of this opinion, such contention is without merit. The commission provided for by statute is evidently a writing signed by the appointing power, and not simply a written record of its oral action; and nothing short of production of the document itself will satisfy the conditions required of a party who elects to rely wholly upon a presumption arising from the fact of such appointment, or to base a claim of title to office upon it. There is the same differences between the appointment in writing required by' law and an entry on the commissioners’ minutes stating the fact of appointment as there is between any official document duly executed by the officer required to make it and the history of his act in making and signing such a paper written by another and entirely different person. In this view, however, as will be noted from an examination of the opinion, the other members of this court do not deem it necessary to the result announced to concur, but hold that, even though the appointment shown by the evidence of this case raises a presumption of vacancy in office, such presumption is entirely overborne by the counterpresumption that defendant did not commit a crime by taking, holding, and attempting to perform the duties of a county office when he was not a resident of the county. ‘
The petition for rehearing is therefore denied.