I concur in the decision of a majority of the court in denying the peremptory writ of mandamus in this' case.
With that part of the opinion delivered by Mr. Justice Dickey as to the time when the recent amendment to the constitution becomes a part of that instrument I fully concur, but with the- other positions taken in his opinion I do not agree. Undoubtedly the amendment became a part of the constitution when the canvassers declared it was adopted. That is plainly expressed in the act submitting it to a vote of the people, and a different time should not be fixed for it to take effect by judicial construction. From the time of its adoption, the constitution should be read with the amendment as constituting the 8th section of the 10th article, and whatever changes the amendment makes should be regarded as taking effect from that' date.
As there is now no constitutional provision that authorizes or directs an election for the officers enumerated in the amendment to be holden in November, 1881, and as the sections of the act of the General Assembly in force July 1, 1872, in regard to the election of such officers, have been so amended as to provide for an' election in November, 1882, I am of opinion no election can be holden for such officers until the time fixed by the constitution, and the statute passed in pursuance thereof. The fact a day in November, 1882, is fixed for the election of such officers, inhibits as effectually an election at an earlier day as if the constitution and the statute had positively forbidden it.
I am further of opinion there is nothing in the constitution or the act of the General Assembly that can be construed as extending the terms of the present incumbents of those offices. By law their respective terms will expire in 1881, but the 8th section of article 10 of the constitution, both before and since its amendment, continues them in office until their successors “shall be elected and qualified. ” The constitution in that regard has not been changed by the recent amendment. No successors to the present officers can be elected until November, 1882. Until that time the present county officers, notwithstanding their respective terms of office may sooner expire, will hold over under the provisions of the constitution, in precisely the same manner as they would if the people should fail to elect their successors at a general election appointed by law.