Concurring in Part. — On April 1,1919, a warrant was issued by the secretary of state in favor of “Ben W. Olcott, governor, for the sum of $336 in payment of the salary due said Ben W. Olcott, as governor, from March 7 to March 31, 1919.” The state treasurer contends that the warrant “should be drawn to Ben W. Olcott, secretary of state, acting governor”; and since the warrant is not so drawn the state treas*492urer refuses to pay it. From this brief statement it can be seen át a glance that the sole question for decision is whether the state treasurer is obliged to pay the warrant; and yet while it is true that the only question for decision is whether the state treasurer must pay the warrant, it is also true that it may be necessary to decide certain preliminary questions before the ultimate question can be reached or decided; and therefore any opinion expressed about the preliminary questions or the ultimate question is not obiter dictum. As the writer views it, one of the preliminary questions is whether Ben W. Olcott was, from March 7th to March 31st, merely ex-officio governor or governor in his natural capacity. The petitioner is probably entitled to the salary attaching to the office of governor for the period mentioned in the warrant, whether he was merely acting as governor by virtue of his office as secretary of state or whether he was governor in truth and in his natural capacity. I prefer, however, to decide the ultimate question for decision by deciding whether Ben "W. Olcott was only secretary of state and merely performing the duties of the office of governor as ex-officio governor or whether he was in truth governor, and thus place my conclusion upon stated, certain and defined ground. Furthermore, since the state treasurer will be obliged to pay warrants each month so long as the petitioner is entitled to occupy the office of governor, I think that we can with propriety discuss and determine the question as to how long Ben W. Olcott is entitled to hold the office of governor, and thus decide the rights of the petitioner upon the one hand and the duties of' the defendant upon the other.
The conclusion reached by this court in 1884 in Chadwick v. Earhart. 11 Or. 389 (4 Pac. 1180), when *493applied to the same facts confronting us now and here, indubitably decides that Ben W. Olcott is in truth governor. If Article Y, Section 8, of the state Constitution were now for the first time presented for judicial construction I would, for reasons which to me are not only persuasive but convincing, take the view that upon the removal, death, resignation or inability of the governor to discharge the duties of the office, the secretary of state becomes merely ex-officio governor. In other words, it is my opinion that a correct construction of the Constitution only empowered Chadwick to act as governor until he ceased to be secretary of state and then the duties of the office of governor devolved upon Earhart, the succeeding secretary of state, until Thayer qualified as governor; or, applying what I conceive to be the meaning of the Constitution to the instant case, because and only because he is secretary of state, Ben W. Olcott would perform the duties of governor until his term as secretary of state expires on the first Monday in January, 1921, when his successor’s term as secretary of state shall begin and such successor would then discharge the duties of governor until the speaker of the house of representatives at the session to be held in 1921 publishes the vote for governor. Although I would entertain an opinion different from that expressed in Chadwick v. Earhart if the question of the construction of Article Y, Section 8, of the Organic Act were res integra, nevertheless, whatever the views of any of us may be, candor compels each of us to admit that the question of the construction of this section of the Constitution is not so plain and clear as to be entirely free from serious debate. The members of the legislative assembly of 1878 differed in their opinions as to whether Chadwick or Earhart was entitled to perform the duties of gov*494ernor during the two days which intervened between the expiration of Chadwick’s term as secretary of state and the commencement of Thayer’s term as governor; and in the subsequent litigation growing out of that situation, lawyers and judges differed in their views as to whether the secretary of state became governor in his natural capacity upon the death or resignation of the governor. Stephen F. Chadwick was a member of the constitutional convention and he asserted that he was entitled to hold the office of governor until the inauguration of Thayer who had been elected at the June, 1878, election; but so far as the writer has been able to discover, every other member of the constitutional convention, who has left any record of his view, was of the opinion that Chadwick was only governor ecc-officio and that when Earhart became secretary of state he and not Chadwick was entitled to act as governor until the inauguration of Thayer. The house and senate journals of the session of 1878 contain some interesting information. Before noticing the legislative journals, however, we should first acquaint ourselves with all the facts entering into the controversy in Chadwick v. Earhart, because by so doing we can better understand the story told by the house and senate journals and better comprehend the full meaning of the decision rendered in that lawsuit.
Stephen F. Chadwick was elected secretary of state and L. F. Grover was chosen governor at the June, 1874, election. Each was elected for a term of four years. At that time the biennial sessions of the legislative assembly commenced on the second Monday of September in the even-numbered years and this accounts for the fact that there was a regular session in 1874 and also in 1878; but commencing with 1885 the biennial sessions have begun on the second Mon*495day in January of the odd-numbered years: Article IV, Section 10, State Constitution; Section 2594, L. O. L. The Constitution provides that the returns of every election for governor shall be sealed up and directed to the speaker of the house of representatives who shall open and publish them in the presence of both houses of the legislative assembly: Article V, Section 4. In 1878, as now, the law provided that the term of office of the governor ceases when his successor, having been declared elected by the legislative assembly, as provided in the Constitution, shall be inaugurated by taking the oath of office: Deady’s Code, p. 711; Section 3440, L. O. L. See also Chapter 84, Laws 1913. In 1878, the statute provided that—
“The term of office of the secretary of state, state treasurer and state printer shall cease on the first day of the regular session of the legislative assembly next following the general election on which the terms of their successors shall begin”: Deady’s Code, p. 711; Section 3441, L. O. L.
In 1908 the Constitution was amended so as to read thus:
“All officers except the governor, elected at any regular general biennial election after the adoption of this amendment, shall assume the duties of their respective offices on the first Monday in January following such election”: Article II, Section 14.
The legislative session which was held in 1878 commenced on Monday the ninth day of September; R. P. Earhart was elected secretary of state at the June 1878 election; Chadwick qualified as secretary of state in September 1874 and by force of the statute then in existence his term as secretary of state ceased on September 9, 1878, and Earhart’s term as secretary of state began simultaneously with the termination of *496Chadwick’s term as secretary of state. The legislative assembly of 1876 elected L. F. Grover United States Senator; and on February 1, 1877, Grover resigned as governor so that he could assume the duties of United States Senator. W. W. Thayer was elected governor at the June, 1878, election. The vote for governor was published by the speaker of the house on September 10th and Thayer “took the oath of office” on September 11, 1878. Chadwick assumed and discharged the duties of governor from February 1, 1877, the date when Grover resigned, until September 11, 1878, the date when Thayer was installed in the office. Chadwick ceased to be secretary of state on September 9, 1878, the date when he was succeeded by Earhart as secretary of state, and notwithstanding the fact that Earhart and not Chadwick was from that time on secretary of state the latter and not the former acted as governor.
The house and the senate each effected a permanent organization on September 9, 1878. On the following day D. P. Thompson of Multnomah' County introduced House Joint Resolution No. 2, which reads as follows:
“Resolved, that a committee of three on the part of the House and two on the part of the Senate be appointed to wait on his Excellency, Governor R. P. Earhart, and inform him of the organization of the two Houses, and that they are ready to receive any message he may be pleased to make.”
H. Green of Benton County immediately moved to amend the resolution “by striking out the word ‘Earhart’ and substituting therefor the word ‘Chadwick.’ ” The motion to amend prevailed, and then the resolution, as amended, was adopted by a vote of 34 for with 23 against it. Among those voting ag-ainst the resolution, as amended, was W. A. Starkweather, who was a *497member of tbe constitutional convention. When H. J. R. No. 2 was received by the Senate that body adopted it. There was but one absentee; and all the members present voted for the resolution. It may be of interest to note in passing that the membership of the senate included at least seven lawyers. According to the journal of the house on September 11th,
“The convention was called to order by the President of the Senate, who stated the object of the convention to be to hear the biennial message of the outgoing executive, Gov. Chadwick, and also, the inaugural address of His Excellency, W. W. Thayer, Governor elect.”
Chadwick delivered a message to the joint convention and then Thayer “took the oath of office” and delivered his inaugural address.
We find from an examination of the records that Chadwick, who helped to frame the Constitution, asserted that he was governor; that Starkweather by his vote as a member of the house of representatives denied that Chadwick had authority to act as governor after his term of secretary of state had expired; and that R. P. Boise, who was also a member of the constitutional convention, as a circuit judge decided that Chadwick was not entitled to the salary of governor for any part of the period from February 1, 1877, to September 11, 1878. It is,a very significant circumstance that Matthew P. Deady, who was the president of the constitutional convention and afterwards became a very eminent jurist, in his Code of 1866 employs the following marginal heading for Section 8 of Article V: “Acting governor in case of vacancy or disability.” We find members of the house of representatives, among whom were lawyers of recognized ability, expressing different views; but we also find a *498majority of the members of the house affirmatively and squarely deciding that Chadwick was governor and we likewise find all the members of the senate, except a single absentee, unequivocally treating. Chadwick as governor, presumably with full knowledge of the controversy that had arisen in the house and of the decision reached by a majority of the members of the house concerning the official status of Chadwick. Although the decision of the legislature does not bind the court when called upon to construe the Constitution nevertheless the views of the members of the legislature solemnly expressed at a time when the Constitution was only nineteen years old are not entirely without significance and may afford some aid. We find, however, that when the controversy was finally submitted to an appellate court the question was judicially settled by the unanimous voice of that court.
A judicial decision which is clearly and manifestly erroneous and, because erroneous, produces injustice and hardship, should, like the errors of any other tribunal, officer or person, be corrected and righted at the earliest opportunity; for the doctrine of stare decisis was never intended to apply to such a situation; but when a court is confronted, as we are now, with a controversy involving the construction of a section of the Constitution, and the official records of the state disclose the fact that different persons, bearing the responsibilities of public office, have in the discharge of their duties expressed variant opinions, and it appears that a legislative assembly, removed only nineteen years from, the date of the adoption of the Constitution, has by unmistakable action decided that the resignation of the elected governor devolves the office of governor upon and transfers it to the secretary of state,, and it is shown that an appellate court has by *499a unanimous voice adjudged that the death of the elected governor devolves the office of governor upon and transfers it to the person who is secretary of state, the rule of stare decisis becomes peculiarly and preeminently applicable because it accomplishes what it was designed to accomplish, by giving to the law, as construed by the courts, the qualities of certainty, definiteness and stability. The decision rendered by the court in Chadwick v. Earhart ought to he binding upon us to the extent that it was necessary for the court to construe Article Y, Section 8, in order to decide the issues presented in that litigation. Turning now to the pleadings in Chadwick v. Earhart we find that Chadwick demanded of Earhart as secretary of state a warrant for $2,420.75 to cover the salary of governor for the period, commencing February 1,1877, and ending September 11, 1878. Earhart refused to issue the warrant. Chadwick brought a proceeding for the purpose of compelling the issuance of the warrant. The stipulation, upon which the case was tried, contained the following recital:
“Mr. Earhart objects to the salary being paid from the 9th day of September, 1878, to the 11th day of September, 1878 — two days on the ground that Mr. Chadwick was not secretary of state after Mr. Earhart was sworn in on the 9th day of September, 1878, though Mr. Chadwick acted as governor until and including the 11th of September, 1878.”
Thus it will be seen that the question of salary covered two periods: (1) From February 1, 1877, to September 9, 1878, or the period during which Chadwick was secretary of state; and (2) from September 9, 1878 to September 11, 1878, or the period during which Chadwick was not secretary of state. The court decided that Chadwick was entitled to the salary *500of governor for both periods and hence in order to reach that decision it became necessary to construe Article V Section 8, and to determine whether Chadwick was simply ex-officio governor while secretary of state or whether the office devolved upon him in his natural capacity thus making him governor in truth; and since the court determined that the office of governor devolved upon Chadwick in his natural capacity making him governor in truth, that decision ought to be accepted as final and ought to govern now just as it governed then.
However, as I read it, the written opinion rendered in Chadwick v. Earhart does not decide that the people cannot elect a governor at the general election to be held in 1920 or that the person so elected cannot qualify and assume the office of governor when the speaker of the house publishes the vote in January, 1921, after the legislature convenes. Ben W. Olcott was elected secretary of state at the November, 1916, election and his term as such will expire on the first Monday in January, 1921. His successor will be elected at the November, 1920, election and such successor will assume the duties of secretary of state on the first Monday in January, 1921. ' James Withycombe was elected governor at the November, 1918, election and he qualified on January 14, 1919, after the speaker of the house of representatives published the vote cast for governor. James Withycombe was elected for a term of four years ending in January, 1923; but he died on March 3, 1919, and hence two regular elections will be held between the date of his death and the end of the four year period for which he was elected. In this respect the facts in Olcott v. Hoff are essentially different from the facts in Chadwick v. Earhart; for in the latter case Grover resigned *501on February 1, 1877, and a governor was elected at the very first' opportunity which was in June, 1878, and the elected governor assumed the duties of the office at the very first opportunity which did not occur until the speaker of the house published the vote cast for governor. When in Chadwick v. Earhart the court speaks of “.the remainder of the term of the outgoing governor” reference is made to the “remainder” left after February 1, 1877; fo.r the court was dealing with that and no other “remainder.” The court was not called upon to decide, nor did it attempt to decide, whether • Chadwick could have occupied the office of governor from February 1, 1875, if Grover had resigned on that date, and held it through two elections, one in 1876 and the other in 1878. • As I read the opinion in Chadwick v. Earhart, no expressions appearing there or rule applied there can be found sustaining the view that the people cannot elect a governor at the next election to be held in November, 1920. When James Withycombe died, the Constitution appointed Ben W. Olcott, because he was secretary of state, governor “until * * a governor be elected,” so that the office will not be without an occupant “until * * a governor be elected.” If we apply to the facts presented to us the same rules that were applied in State ex rel. v. Johns, 3 Or. 533, the conclusion is unavoidable that the legal voters can, at the election to be held in November, 1920, elect a governor who can assume the office in 1921 when the speaker of the house publishes the vote cast for governor. Be it remembered, too, that it was B. P. Boise, a member of the constitutional convention, who as circuit judge decided State ex rel. v. Johns in the Circuit Court and that his reasoning was repeated with approval and that his conclusion was affirmed when the Supreme Court de*502cided the same case on appeal; and, moreover, one of the judges participating in the decision announced by the Supreme Court was P. P. Prim, also a member of the constitutional convention. The doctrines which were announced and applied in State ex rel. v. Johns were again recognized in State ex rel. v. Ware, 13 Or. 380 (10 Pac. 885), and at a more recent date followed by a majority of the court, as now constituted, in State ex rel. v. Kellaher, 90 Or. 538 (177 Pac. 944). The same rule was followed and put into practice when Ben W. Olcott was elected secretary of state at the 1912 election to succeed Frank W. Benson who had died in April, 1911, after having been elected in 1910 for the full term of four years. Suppose that F'rank W. Benson had not died in April, 1911, but that he had lived and filled out his term and that Ben W. Olcott had been elected secretary of state in 1914 and reelected in 1918 contemporaneously with the re-election of James Withycombe as governor and suppose that Ben W. Olcott should to-day resign both the office of secretary of state and governor; Would anyone be so bold as to contend that th.e president of the senate would be entitled to act as secretary .of state and also as governor or that he could act as either until 1923? The framers of the Constitution deliberately provided for the two offices of governor and secretary of state and they intended that those offices should be occupied by different persons so long as possible; but anticipating the possibility of death, resignation or removal they provided for those contingencies by declaring that the secretary of state shall be automatically appointed governor “until * * a governor be elected.” This automatic appointment is temporary and ends just as soon as the people can elect a governor at the next biennial election. When the writers of the Con*503stitution made the governor, secretary of state and state treasurer a board of commissioners for the sale of school and university lands and for the investment of funds arising therefrom they did so for the manifest purpose of bringing to the business the judgment, wisdom and experience of three men; and every one of the various subsequent acts of the legislature making these officers the constituent members of boards was framed for the same purpose. The makers of the Constitution did not intend that one person could occupy more than one of these offices any longer than was necessary.
In Article II, Section 10 we read that no person shall “hold more than one lucrative office at the same time, except as in this constitution expressly permitted.” There is no provision in the Constitution expressly or by manifest implication declaring that the secretary of state shall hold the office of governor through two biennial elections; but upon the contrary the whole plan and purpose of the Constitution negatives the idea that the secretary of state can hold any longer than is necessary. The Constitution provides for the two offices of governor and secretary of state because the framers of the organic act deemed two offices necessary; one person is prohibited from holding two lucrative offices except as in the Constitution expressly provided, because the framers of the organic act deemed it desirable that one person hold only one lucrative office. The rule established by the Constitution is that one person can hold but one office; for one person to hold two offices is the exception. The framers of the Constitution anticipated the contingencies of death, resignation or removal by providing for the exception. The important business of the management of school and university lands and funds was *504placed in the hands of three and not two persons. A, board of three persons is the rule; a board of two persons is the exception. The office of governor as well as that of secretary of state is elective. An election is the rule; an appointment is the exception. Finding as we do that two offices with two persons as the officers is the rule while two offices with one person acting as the two officers is the exception, that an- election is the rule and an appointment is the exception, that a board of three commissioners for the management of the school and university lands and funds is the rule, while a board with two commissioners is the exception, we would also expect to find provisions terminating the exceptions, whenever they occur, and reestablishing the rule at the very earliest opportunity. The rule was provided for because it was deemed to be the best; the exception was provided for because it was deemed to be the next best; and naturally the theory of the Constitution is that the best shall be had as long as possible while the next best shall be had only so long as necessary. As shown by the stipulation filed in Chadwick v. Earhart the “remainder” discussed and referred to in that case only covered the short period which intervened between the end of Chadwick’s term as secretary of state and the commencement of Thayer’s term as governor. That case as well as every case must be read in the light of the facts presented to the court. The conclusion that the office of governor can be filled by the people ■ at the next election harmonizes every part, of the Constitution with every other part, gives full meaning to every word and every section, and as said in State ex rel. v. Johns “is in perfect accord with the spirit of our constitution and laws.”
*505There is no analogy whatever between the offices of President and Vice-president of the United States on the one hand and those of governor and secretary of state on the other. By the express language of the Constitution of the United States the President “shall hold his office during the term of four years, and, together with the Vice-president, chosen for the same term, be elected as follows.” Our Constitution does not tie the office of governor to that of the secretary of state; nor does it tie the latter to the former. The governor is elected “at the times and places of choosing members of the legislative assembly”: Article V, Section 4. Members of the legislature are elected at the general elections which are held biennially. In brief, I take the view that Ben W. Olcott is governor in truth as distinguished from governor ex-officio; that he is entitled to hold the office of governor and is entitled to the salary of that office until his successor is elected and qualified; and that the legal voters are entitled to elect a governor at the next election to be held in November, 1920, and that the person so- elected is entitled to assume the duties of the office when the vote is published by the speaker of the house of representatives in January, 1921. I think, too, that the logic of the holding in Chadwick v. Earhart inevitably leads to the conclusion that the petitioner can resign as secretary of state and continue to occupy the office of governor.
Benson, J., concurs.