(Specially Concurring.) — This case is fully stated in the opinion of Mr. Justice Johns, to which we refer.
The same questions herein presented were discussed at great length in Olcott v. Hoff, 92 Or. 462 (181 Pac. 466). These questions seem now squarely before us for decision. Every citizen is interested in who shall be governor of the state and in the enforcement of the law by which the election of a governor is submitted to the voters, at the time contemplated by the provisions of the Constitution of the state; and a mandamus proceeding may be maintained in a case like this at the relation of such a citizen. Otherwise, the rights of the voters could be ignored entirely, and the election of a governor postponed from time to time, at the will of the secretary of state, and there would be no remedy: State v. Ware, 13 Or. 380 (10 Pac. 885).
After much consideration and some hesitation I feel compelled to concur in the opinion of Mr. Justice Johns upon the ground of stare decisis only. It seems to me that the case of Chadwick v. Earhart, 11 Or. 389 (4 Pac. 1180), is directly in point and is controlling. If it were not for that case and if the question was here as a matter of first impression, I should be governed by the reasoning of Mr. Justice Harris, when the question was under consideration in Olcott v. Hoff,which seems to me to present, as a matter of logic, the stronger considerations.
The reasoning of the Chadwick case does not appeal to me as being, by any means, conclusive in its logic or even very cogent. The court in that case 'seems to have concluded that the relation of secretary of state to the office of governor was exactly the same as the relation of Vice-president to the office of President in the federal government. There does not seem to me *645to be such analogy. The President of the United States is elected to a four year term. There is no provision in the Constitution or laws, by which in case of death or resignation his successor could be elected at any intervening time. It follows as a matter of course that the Vice-president shall take his place in case of death, and hold his office for the full remainder of the original term, because there are no means or provision by which a successor can be elected at any intervening time.
The case of governor and secretary of state under our Constitution is different. Here we have general elections every two years over the entire state, when the people may (if the Constitution is not construed to prohibit), elect a governor at the same time as the other general officers, and the members of the legislative assembly.
Neither does the reasoning of the court in that case, by which it was concluded that Section 8 of Article V of the Oregon Constitution, made the “office” of governor itself devolve upon the secretary of state and entitle the occupant of the secretary of state’s office to take that office personally, and hold it after he ceases to be secretary of state, seem to me altogether satisfactory. It seems to me a better construction of the Constitution would have been, that the duties of the office, rather than the office itself, devolved upon the secretary of state, and that he exercised those duties only by virtue of his office and as long as his office of secretary of state continued. And that the office of governor itself became vacant upon the death or resignation of the governor, and could be filled at the next general election.
But we must accept some things as settled. Otherwise, there would be no end to controversy and litiga*646tion, and no one would know what his rights really are or who is entitled to administer the laws under which he lives. While not entirely satisfied with the reasoning, I find myself unable to accept the contention of the relator, that the opinion of the court in the Chadwick case was mere dictum; or to follow the reasoning of Mr. Justice Harris by which that case is distinguished from the case at bar.
It is plain there were two independent questions presented in the Chadwick case. -First, whether the duties of the office oí governor devolved upon the secretary of state and gave him the right to the salary of the office while he was such secretary; second, whether he continued to perform the duties of the office of governor after his office as secretary expired and during the term from which the outgoing governor had resigned; and was he therefore entitled to the salary of governor during the remainder of that term.
It is plain that what was said by the court in relation to the first question has no bearing upon this case.
If we strip the opinion down to what is strictly pertinent here it will be short and I think clear and will, read as follows:
“Two questions are submitted in this case. The first and principal one is, whether, when, under Section 8 of Article Y of the Constitution of Oregon, the duties of the office of governor devolve upon the secretary of state, he has a right to the salary of the office. Second. If this question be answered in the affirmative, whether he shall continue to perform the duties of the office for the remainder of the term of the outgoing governor, or shall he perform those duties only so long as he' shall continue to be secretary of state. * #
“The principle on which the second question is to be decided, namely, whether the appellant shall cease to be governor when he ceases to be secretary of state, seems to be this: If an office be appendant, as the ex*647pression is in 1 Leon. 321, to another office, the determination of the first office will determine the second. * *
‘ ‘ On the contrary, if the nomination or appointment to an office he by descriptio personarum of one who holds some office by the title of which he is described, and who on some contingency is to enter and fill another office, the answering the description at the time the contingency arises designates him as the person who is to enter and fill the office, and when, as thus designated, he enters into the office, he holds it in his natural, and not in his official capacity. * *
“This question, therefore, must also be answered in favor of the appellant, and judgment be entered accordingly.”
I have italicized such words in the foregoing as seem to me to be particularly pertinent. It seems clear to me that the court by this language, intended to pass in a broad way upon the whole question, and to hold that the office of governor, which had been resigned by Governor Grover, passed to Chadwick personally, and carried with it all the attributes of that office, including the right to hold it for the entire remainder of the term, which unquestionably belonged to the previous outgoing governor. If this view needs any further support than the mere language of the opinion itself already quoted, it is found in the fact that the court reached this conclusion on account of the analogy which it assumed to exist between the offices of governor of the State of Oregon and secretary of state on the one hand, and the office of President and Vice-president of the United States upon the other; and the court reasoned that the office of governor passed to the secretary of state in the same way and for the same remainder of the term that the office of President of the United States passes to the Vice-president. Part of the opinion reads:
*648“The Constitution of the United States, providing for the contingency of a vacancy in the office of President, is nearly the same with the provisions of our state Constitution providing for a vacancy in the office of governor. * * The Vice-president holds the office of President until the successor to the deceased President comes to assume the office at the expiration of the term for which the deceased President and the Vice-President were elected. ’ ’
We may doubt whether the supposed analogy was as complete and perfect as the court assumed, and indeed as to whether there was any analogy at all, but we cannot very well doubt that the court in the Chadwick case intended to hold that the secretary of state, held the office of governor of Oregon, in the same way that the Vice-president holds the office of President of the United States upon the decease of the President. When we remember further that the court held that the “office” devolved upon the secretary of state, and when we consider that the term “office,” when used thus without limitation, has reference to the duration of the position and the term of its occupancy, as well as the duties to be performed, the purpose of the court becomes still plainer.
In People v. Ahearn, 196 N. Y. 221 (89 N. E. 930, 26 L. R. A. (N. S.) 1153), it is said in relation to the word, “office”:
“It means a right * * to hold the place and perform the duty for the term and by the tenure prescribed by law. ’ ’
In Kendall v. Raybould, 13 Utah, 226 (44 Pac. 1034), it is said:
“An office embraces the idea of tenure, duration, emoluments, and duty, and these ideas or elements cannot be separated and each considered abstractly. All taken together constitute the office.”
*649To the same effect, see Tanner v. Edwards, 31 Utah, 80 (86 Pac. 765, 120 Am. St. Rep. 919, 10 Ann. Cas. 1091).
In State v. Rose, 74 Kan. 262 (86 Pac. 296, 10 Ann. Cas. 927, 6 L. R. A. (N. S.) 843), it is said:
“An ‘office’ is a trust conferred by public authority for a public purpose and for a definite term.”
In United States v. McCrory, 91 Fed. 295 (33 C. C. A. 515), the court defines the word “office” as follows:
“An office is a public station or employment conferred by the appointment of governor, the term embracing the idea of tenure, duration, employment and duties.”
To the same effect, - see Burrell’s Law Dictionary, title “Office.”
In United States v. Hartwell, 6 Wall. 385 (18 L. Ed. 830), the Supreme Court of the United States says of the term “office”:
“The term embraces the idea of tenure, duration, emolument and duties.”
In People v. Duane, 121 N. Y. 375 (24 N. E. 847), it is said of a public office that it means, among other things, the right “to hold the place and perform the duty for the term and by the tenure prescribed by law. ’ ’
It seems plain to me that the court used the word in this sense in Chadwick v. Earhart, when it said in effect that the “office” of governor devolved upon the secretary of state for the remainder of the governor’s term, and that it intended to place its decision upon the broad principle, that the office of governor, with all its attributes, including the duration of the term, devolved upon the person who was then secretary of state, who continued to hold it for the entire remainder *650of the term, the same as the Vice-president holds the office of President.
It remains to be considered, whether or not the question which the court did decide and which it intended' to decide, in the case of Chadwick v. Earhart, and especially the question as to whether or not the secretary of state took the office personally and held the office of governor for the entire term, or only a portion thereof, was fairly within the issues made in that case, or whether, on the other hand, the principles that the court announced in that case were outside of the issues and mere dictvm, which settled nothing and binds nobody.
In considering this question we must, it seems to me, remember that this is a great constitutional question in which the whole people of the state are deeply interested. They are interested to know, now and at all times hereafter, who is in truth their governor, and who is entitled to administer their laws. And when that question had once been settled they are interested in having that settlement remain undisturbed. It is far more important that the people shall know for a certainty who is of right their governor at a given time, and who is- entitled to perform the duties of the highest office of the state, than it is that any one person shall be governor at a given period.
It is not so very important to the people of the State of Oregon, whether Mr. Olcott or some other competent person shall act as governor for the ensuing two years. But it is important — exceedingly important— that whoever does act as governor shall have undoubted and unquestioned authority — so that his acts may be valid and the people may know them to be valid, and that their validity is beyond doubt or cavil. We do not want any possibility of two governors in the *651state; or two persons claiming to be governor, each with some shadow of authority and with a divided fealty behind him. It is because of such possibilities, no doubt, that the authorities recognize that the doctrine of stare decisis rests with peculiar and exceptional force, upon such great constitutional questions.
Mr. Black, in his work on Judicial Precedents, page 222, says:
“The principié of stare decisis applies with especial force to the construction of Constitutions, and an interpretation once deliberately put upon the provisions of such an instrument, should not be departed from without grave reasons.”
And at another place, on page 223:
“Former decisions should not be departed from merely because the court, as at present constituted, entertains a different opinion as to the meaning or application of a given provision of the Constitution from that announced by its predecessors.”.
And again, on page 224:
“It is said that the principle of stare decisis, as applied to the construction and interpretation of the Constitution, is specially imperative, when the former decisions were rendered at an early day and have long been considered as settling the law.”
In Lewis’ Sutherland on Stat. Const. (2 ed.), Section 475, it is said:
“When a judicial interpretation has once been put upon a clause, expressed in a vague manner and difficult to be understood, that ought of itself to be sufficient authority for adopting the same construction.”
It is true that questions not fairly within the issue made by the pleadings and presented to the court, cannot be authoritatively passed upon in any case, and if the-court goes outside of these questions and decides *652others which are not before it, its utterance is a mere dictum which binds no one; and we must always assume that the court only intended to pass upon the questions that were really presented in any case for decision. But I do not understand, that in order to make the decision in one case a controlling precedent in another, the two cases must be in all respects exactly identical. On the other hand, as I understand the rule, if the doctrines announced in one case are necessary to the decision — necessary to the conclusion which the court reached in that case, and a part of the reasoning upon which the court reached that conclusion, they become established principles which govern all other cases, which come within them.
“ Whenever a question fairly arises in the course of a trial, and there is a distinct decision thereon, the courts ruling in relation thereto, can in no sense be regarded as mere dictum": Railroad Co. v. Price, 159 Fed. 332 (86 C. C. A. 504, 16 L. R. A. (N. S.) 1103).
“No matter what the situation may appear to be, as to the unjust operation of a law, courts should, not struggle to change it as it has been understood to exist and has been plainly written into its decisions for years, by fine distinctions between cases, and by rejecting the reasons upon which they were grounded as obiterLewis’ Sutherland on Stat. Const. (2 ed.), §484.
_ _ _ “A judicial decision is to be regarded as conclusive, not only of the point presented in argument, but of every other proposition necessarily involved in reaching the conclusion expressed”: Id., § 486.
Our own court has gone further than most courts— further than it has seemed to me sometimes it ought to go — in extending the doctrine of stare decisis. In the case of Wilcox v. Warren Construction Co., 95 Or. — (186 Pac. 13), decided at this term, the majority of the court held that a.previous decision that a mother took *653to the exclusion of a father under the employers’ liability law, upon the death of a child, was controlling as to the relative right of the widow and children under the same law on the death of the husband and father, although the court in the previous decision had not even attempted to decide the rights of the latter in any way, and there was a very broad ground for distinguishing between the two.
In Olcott v. Hoff, already cited, the majority of the court held that an authoritative and controlling decision could be made, as to how long and for what term the secretary of state could hold the office of governor; and even as to whether he could resign the office of secretary of state and still hold the office of governor, although neither of these questions were at all presented in the pleadings, and the only question really at issue, was whether or not the state treasurer should have honored a warrant drawn for his salary, while he was still secretary of state, and while the office of governor whs still unquestionably vacant except for his incumbency. In that case Mr. Justice Harris, in an opinion in which Mr. Justice Benson concurs, says:
“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 on the other.”
And that—
“The petitioner can resign as secretary of state and continue to occupy the office of governor.”
If a decision, as between the rights of the mother and father to damages under the liability law, is to be held conclusive and controlling between the widow and children, whose rights were in no way in question, and if *654we could properly determine the right of the secretary of state to resign and still hold the office of governor, and the right of the secretary of state to hold the office of governor after the election in 1920 in Olcott v. Hoff, when these questions were in no way presented by the pleadings, then it seems to me, that it would be going a long way to hold that we are not bound, by the unanimous decision of a previous Supreme Court, when it was passing properly and necessarily upon the very question as to whether such secretary of state, acting as governor, held for the full remainder of the governor’s term or only a portion of that remainder.
It seems to me the holding of the court in the Chadwick case, that the office of governor devolved upon the secretary of state for the full term of the outgoing governor, carrying with it all the attributes of that office in the hands of him who had resigned, including the duration of the term, was necessary to that decision ; and indeed was the very foundation upon which the decision was based. That being true, it follows that we must so hold in this case unless we are ready to overrule the Chadwick decision and disturb again what was once settled thereby, because our own individual judgments — or the individual judgment of the majority of us — differs from the judgment of the preceding tribunal. This I am not willing to do.
How can anything in relation to these great constitutional matters, be settled, if one court does not follow ‘¡the precedent of another? How can we expect other courts in the future to follow our decisions if we ourselves refuse to follow the decisions of those who have gone before? If we overthrow the decision in the Chadwick case because some of us now believe that the Constitution should have been differently construed, there is nothing settled — nothing determined. The *655next court coming after us will find two decisions of this court in direct conflict. One a unanimous decision by a full court, holding directly that the secretary of state holds for the entire term of the governor and our decision by a divided court to the contrary. Which decision would the succeeding court be bound to follow, or would it be bound to follow either. The whole question will be thrown into chaos and no one, under such conditions, would know who would be really governor. Since the Chadwick case was decided I think it has been universally accepted as settling the question.
As is shown in the opinion of Mr. Justice Johns, the different codifiers of our laws — all of them learned lawyers — since that time, have embodied in every codification a note to this section of the Constitution, announcing that the secretary under such conditions holds over during the entire term. No lawyer could open his Code to the Constitution without having it staring him in the face. It has stood thus for 35 years. The decision of the Chadwick case is a part of the early history of the state. Since that decision, young men have grown old. Children have been bom and married and died. An entire generation has passed away. Since then seventeen legislatures have held their biennial sessions. They have not even submitted an amendment changing the Constitution as thus construed. For many years now the people have had the opportunity to change their own Constitution by the initiative. No change in this regard has been made or even offered.
,May we not assume fairly,, that the people and the legislature have been satisfied with the Constitution as it was considered in the Chadwick case? It is true that our system of filling our offices is generally by election rather than by appointment. But when the sec*656retary of state takes the office of governor he takes it in some sense by election. The people, when they elect a secretary of state, know that in case of the death or resignation of the governor, he will become the incumbent of that office. Since the decision in the Chadwick case, we must suppose that the people knew and accepted the fact that he would become governor for the entire remainder of the governor’s term. "When they elect a secretary of state they may fairly be presumed to have elected him for that purpose and with these things in view; and we may assume that he is their choice to fill that position in case of the death or resignation of the governor. Of course if there is no vacancy — if the office of governor is already filled, by an incumbent' who has the right to hold the office for the entire term for which Governor Withycombe was elected — then there is no governor now to be elected, and the petition of the relator must be denied. I cannot see any escape from this result.