Specially Concurring. — I fully concur with the reasoning of Justice Johns, and in the conclusion arrived at by him, but think we should go further and decide every question that is presented in the briefs.
In the specially concurring opinions of Justices Burnett and Bennett, it is urged that the question, as to whether the petitioner will hold for the remainder of the unexpired term of the late Governor Withycombe, or only until his own term as secretary of state expires; and the further question, as to whether Mr. Olcott can now resign, the office of secretary of state and continue to hold the office of governor, are not necessarily involved here, and that any discussion of these questions is academic, and any opinion rendered in respect to them, would be merely dictum.
If these questions involved merely the private rights of individuals this contention would undoubtedly be correct; but where the general public has an interest *484in the controversy the courts have, with substantial unanimity, disregarded the technical limitations embraced in the term “dictum” and decided the' whole controversy where such a course appeared promotive of the public good, or calculated to settle disputed construction of provisions of the Constitution and prevent future litigation concerning them. I do not now refer to or cite the decisions from those states where the law provides for the submission of such questions to the Supreme Court without suit, but to those having Constitutions no broader in these respects than our own and to the Supreme Court of the United States: Giles v. Harris, 189 U. S. 475 (47 L. Ed. 909, 23 Sup. Ct. Rep. 639); Memphis St. Ry. Co. v. Rapid Transit Co., 133 Tenn. 99 (179 S. W. 635, Ann. Cas. 1917C, 1045, L. R. A. 1916B, 1147); Boise City Irr. & Land Co. v. Clark, 131 Fed. 415 (65 C. C. A. 399); Borgnis v. Falk Co., 147 Wis. 327 (133 N. W. 209, 37 L. R. A. (N. S.) 489); State v. Stutsman, 24 N. D. 68 (139 N. W. 83, Ann. Cas. 1914D, 776); State v. Southern Tel. & Cons. Co., 65 Fla. 67 (61 South. 119); Commonwealth of Massachusetts v. Klaus, 145 App. Div. 798 (130 N. Y. Supp. 713); In re Fairchild, 151 N. Y. 361 (45 N. E. 943); People v. General Committee of Republican Party, 25 App. Div. 339 (49 N. Y. Supp. 723); In re Morgan, 114 App. Div. 45 (99 N. Y. Supp. 775).
In Giles v. Harris, 189 U. S. 475 (47 L. Ed. 909, 23 Sup. Ct. Rep. 639), the United States Supreme Court says:
“Perhaps it should be added to the foregoing statement that the bill was filed in September, 1902, and alleged the plaintiff’s desire to vote at an election coming off in November. This election has gone by, so that it is impossible to give specific relief with regard to that. But we are not prepared to- dismiss the bill or the appeal on that ground, because t.o be enabled *485to cast a vote in that election is not, as in Mills v. Green, 159 U. S. 651, 657 (40 L. Ed. 293, 16 Sup. Ct. Rep. 132), the whole object of the bill. It is not even the principal object of relief sought by the plaintiff. The principal object of that is to obtain the permanent advantages of registration as of a date before 1903. * *
“The traditional limits of proceedings in equity have not embraced a remedy for political wrongs. * * But we cannot forget that we are dealing with a new and extraordinary situation, and we are unwilling to stop short of the final considerations which seem to us to dispose of the case”: Giles v. Harris, 189 U. S. 475, 484, 486 (47 L. Ed. 909, 23 Sup. Ct. Rep. 639, 641, 642).
In Memphis St. Ry. Co. v. Rapid Transit Co., 133 Tenn. 99 (179 S. W. 635, Ann. Cas. 1917C, 1045, L. R. A. 1916B, 1147), the Supreme Court of Tennessee says:
“We have formerly held that when any question involving the constitutionality of an Act of the Legislature is bona fide made and relied upon in a case, this Court should take appellate jurisdiction of such a case. * * Although we appreciate the delicacy of passing on the validity of an Act of the Legislature, such a duty is often imposed upon us and we must not dodge our jurisdiction. Where an Act of the Legislature undertakes to regulate a particular subject and the application of such an act is invoked by one party in a suit involving that subject and the validity of the Act is questioned by the other party, we think it proper that the statute should be tested.”
In State v. Southern Tel. & Constr. Co., 65 Fla. 67 (61 South. 119), the Supreme Court of Florida says:
“The Railroad Commissioners, acting for the state, are the relators and plaintiffs in error, and the fact that the person in whose favor the order is sought to be enforced has moved away does not show that under no circumstances can the writ be made effective for the purpose designed in this case. And even if under *486no circumstances the writ could he made effective because of Mr. Chaires’ removal, the appellate court does not thereby lose jurisdiction of the cause, and it may be retained for the determination of questions properly presented involving the duties and authority of state officials that are of general interest to the public. * *
“The respondent’s motion to quash the alternative writ presents questions of law that affect the authority and -duties of the Railroad Commissioners in regulating the service rendered by telephone companies, and the public as well as the relators is interested in having the legal questions raised determined for the future guidance of the state officials. * # ”
In Commonwealth of Massachusetts v. Klaus, 145 App. Div. 798 (130 N. Y. Supp. 713), the court says: .
“This is an appeal from an order of a justice * * denying a motion to issue a subpoena requiring Rembrandt Peale, a person within the state, to appear and testify in a criminal action pending in the state of Mass. # * By the subpoena applied for, it was sought to pro'cure the attendance of Peale in Mass, in Sept., 1910, and it may be that the criminal prosecution has already ended, so that his attendance would now be useless.
“On this point the papers on appeal do not advise us, but even if such were the case we should deem it our duty to examine the question of the validity of the act because the special term decision already referred to will, unless overruled, probably serve to render the act nugatory. Appellate courts not infrequently pass upon questions affecting public interests, even where in the particular ease the question has become academic.”
In re Fairchild, 151 N. Y. 361 (45 N. E. 943), the Court of Appeals of New York says:
“The respondent contends that, inasmuch as the election has been held, the decision of the questions presented on this appeal is of no importance, as it can, *487at most, only affect the questions of costs. We think the questions involved are of sufficient importance to require their determination by this court, as it may prevent future embarrassment in the congressional district to which the controversy relates, and also settle other questions upon which there is a conflict in the decisions of the supreme court. * * ”
In People v. General Committee, etc., 25 App. Div. 339 (49 N. Y. Supp. 723), the same court says:
“This court held In re Cuddeback, 3 App. Div. 103 (39 N. Y. Supp. 388), viz.:
“ ‘An appeal will not always be dismissed because the question is no longer a practical one. Notwithstanding the fact that an election has been held, and a decision of the question involved cannot affect the result of that election, yet, where the point at issue is one of public interest, affecting the rights of all the electors of the state, the courts will determine it.’
“Following the doctrine there laid down, it seems that we ought not, in this case, to dismiss the appeal, because the question here involved is as much a matter of public interest as the question involved in the case from which the quotation has been made. * * ”
And In re Morgan, 114 App. Div. 45 (99 N. Y. Supp. 775), the same court says:
“ * * The sole question involved in this appeal is the constitutionality of said amendment, and, although the said election has long since passed, and therefore our decision can have no effect upon the rights of the appellant at said election, both sides urge a consideration by this court of a public question vitally affecting the conduct of elections in the future. Although in one sense academic, such considerations have moved both this court * * and the Court of Appeals # * to consider and determine cases involving the election laws, although the immediate necessity therefor has passed away. * * ”
This phase of the matter here under discussion did not escape the astute mind of Bouvier, who observes:
*488“So also it has been held, with respect to a court of last resort, that all that is needed to render its decision authoritative is that there was an application of the judicial mind to the precise question adjudged; and that the point was investigated with care and considered in its fullest extent (Alexander v. Worthington et al.), 5 Md. 488; and that when a question of general interest is involved, and is fully discussed and submitted by counsel, and the court decides the question with a view to settle the law, the decision cannot be considered a dictum. (Id.)”
In the present case it cannot be successfully argued that the public has not a profound interest in the speedy solution of the questions submitted. There can be little question that Mr. Olcott is entitled to hold both the office of governor and secretary of state, and to draw the salaries .of both. It is creditable to him that he does not wish to do the first and will not do the second. In the infancy of the state, when its business Was insignificant and its revenues small, one person could well perform the duties of both governor and secretary of state, but with the enormous expansion of state business each of the three constitutional officers finds in his own department all the business which he can attend to, and more.
Questions, involving the care and expenditure of vast sums of money and affecting large social and economic interests, continually present themselves before the various boards, of which these officers are members. The object of having a board, composed of these officers, was to have the advantage of the opinions of three minds and the independent research of three persons before conclusions, vital in the administration of the state’s fiscal affairs, were arrived at. Where the offices of governor and secretary of state are merged in one individual, the public loses the safe*489guard that was intended by the Constitution when it provided that certain boards should consist of three officers, namely, the governor, secretary and treasurer. If it is possible for Mr. Olcott to give up the office of secretary of state and retain the office of governor, he should be permitted to do so, in the public interest, and we ought not to quibble about “dicta” in so declaring.
The public also has an interest in having the duration of his term of office settled. If a new governor is to be chosen at the next general election, the voters of the state should be apprised of that fact, so they may look about and weigh the qualifications of the various candidates, or prospective candidates, with a view to enabling themselves to choose intelligently. With the question undecided, and perhaps a large majority of the voters under the impression that Mr. Olcott’s term will not expire at the next general election, the primary election for that office will be clouded with uncertainties not conducive to intelligent selection.
It is true that each of these questions could be presented later by two or more additional lawsuits; that to use a homely simile, we could “cut the dog’s tail off by inches” instead of by making one slash and finishing the business once for all.
It is true the progress by inches would furnish business for attorneys and capital for petty politicians, but it would not promote the interest of the public, which, as before shown, is to have these questions settled now.
I consider every question discussed in the various briefs absolutely settled by the case of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180), cited in the principal opinion. Justice Waldo, who delivered the opin*490ion in that case, was not only a lawyer of great learning but notably accurate in his choice of language, and the language used by him seems to me to bear no other construction than that when the secretary of state becomes governor, he becomes such in his natural not official capacity; just as the Vice-president, on the death of the President, succeeds to the office for the remainder of the term. Such was the interpretation put upon that opinion by Justice Lord, who was one of his associates .and who concurred in the opinion. After Justice Lord’s retirement from the Bench, he was selected as a commissioner to revise the Oregon laws and produced the compilation which now bears his name.
His annotation to Article V, Section 8, of the Constitution, is as follows, citing Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180):
“Under this provision when the governor resigns, the duties of the governor’s office devolve upon the secretary of state, who continues to perform them for the remainder of the term.”
If the language of the opinion were even obscure, which it is not, this interpretation by one of the learned justices, who participated in its rendition, ought to settle the question as to what the court meant to decide.
I do not consider the cases of State v. Johns, 3 Or. 533, State v. Ware, 13 Or. 380 (10 Pac. 885), State v. Kellaher, 90 Or. 538 (177 Pac. 944), in point in the present controversy. They were decided upon the theory that where a vacancy in an elective office is filled by appointment, the people should have the right to elect a successor at the earliest opportunity. Such is not the case here. Mr. Olcott was not appointed to the office of governor. He succeeded to it by virtue of *491Ms election to the office of secretary of state, just as the Vice-president of the United States, upon the death of the President, succeeds to that office. The people, when they elected him secretary of state, had notice, by the very terms of the Constitution, that in case the governor should die he would succeed to the office of governor; they chose him with that contingency in view. In effect, in choosing a secretary of state, they chose a vice-governor, the rules of whose succession to the office are in no wise different from those investing the Vice-president, except that wMle the governor lives the secretary performs the duties relating to the secretaryship, while the Vice-president — during the life of the President — performs the duties of President of the senate. In both instances the original source of their authority is an election by the people and not, as in the case of State v. Johns, 3 Or. 533, an appointment by the executive.
For the reasons given by Justice Johns, as well as those urged herein, I am of the opinion that this court should declare the petitioner is governor in fact and not acting governor; that he is entitled to the salary of governor; that he holds the office for the remainder of the term of the late Governor Withycombe, and that he may resign the office of secretary of state and still hold the office of governor.