(dissenting) : The question we have here for decision is, Does the interregnum, or exceptional term of one year, which under the biennial-election law intervenes between the regular official terms of a sheriff, constitute a part of the second consecutive term held by a sheriff ? To put it in another form, Can a-sheriff who has held two successive terms legally hold the succeeding special term of one year from January, 1902, until January, 1903? Or, to make the proposition more succinct and simple, Can a person hold the office of sheriff for more than two consecutive terms ? I have no doubt at all that this question should be answered in the negative, and I am authorized to say that Mr. Justice Greene joins with m.e in- this dissent. The controlling constitutional provision, omitting that in relation to county commissioners, reads as follows:
“All county officers shall hold their offices for the term of two years, and until their successors shall be qualified, . . . but no person shall hold the office of sheriff or county treasurer for more than two consecutive terms.”
For reasons sufficient to the makers of the constitution, an exception was made as to sheriffs and county treasurers. It was thought advisable that they should surrender their offices, so that a full and final settlement might be made after an incumbency of two terms. To that end the constitution prohibits the holding for more than two consecutive terms.
But it is said that the constitution also provides for holding over, and that the one-year interval resulting from the passage of the biennial-election law is necessarily a part of the second term, and not something in addition to it. If it were a succession of regular *866terms, or of regular and special terms, and a sheriff were holding over a few days until his successor, who had been, elected or appointed, should qualify, there would be force in the contention of the defendant. It is not an indefinite holding over between successive terms that is involved here, but the question is whether the legislature did or could add a fixed period, a special or exceptional term, to the two consecutive terms limited by. the constitution. If the theory of the prevailing opinion obtains, it results in a sheriff’s holding three consecutive terms — that is, two regular terms and a special or exceptional term. The constitution limits the term of a sheriff to two years, and will it be said that the legislature can purposely add a special term of one year to the regular term, and thus lengthen the official term to three years?
In The State v. Thoman, 10 Kan. 191, and Peters v. Board of State Canvassers, 17 id. 365, the question of the power of the legislature to change official terms was under consideration, and it was held that the constitution was the paramount .law, above legislatures and courts, and that, when the constitution fixes the duration of the term, “it was not in the power of the legislature to extend or lengthen that term either ■directly or indirectly.”
In Hagerty v. Arnold, 13 Kan. 367, the question of adding a special term to a regular one was before the court, and it was again held that the terms of county officers being limited to two years, the legislature was powerless either - to lengthen or to abridge them, and .-surely courts ought not to undertake it. The same view was expressed in The State, ex rel., v. Foster, 36 Kan. 504, 13 Pac. 841; Horton v. Watson, 23 id. 229; The State, ex rel., v. Breidenthal, 55 id. 308, 40 Pac. 651; *867Wilson v. Clark, 63 id. 505, 65 Pac. 705; The State v. Andrews, ante, p. 474, 67 Pac. 871.
In Wilson v. Clark, supra, a vigorous attack- was made on the biennial-election law because it operated to add one year to official terms. .To meet this contention, the court held that the one-year period was not added to or taken from any regular term ; that it was a term of itself, for which the legislature could provide, and which might be filled as was provided in the act itself or in the general provisions of the statute relating to the appointment and election of officers. In regard to postponing elections, for a fixed term of one year, it was there said that “if it appear that it was done merely to extend official terms and as a favor to incumbents of offices, there might be occasion for judicial interference and condemnation,” and this view was reiterated and reaffirmed in The State v. Andrews, supra.
Is the interval of one year a part of defendant’s second term, or is i.t an exceptional term in itself ? As already said, the hold-over provision was intended to apply to cases where one regular term follows another, and the incumbent is entitled to hold for an indefinite time until his successor, chosen under the law, shall be qualified. The intervening period of one year is not an indefinite one. It is a fixed period or. term, and no authority cited in either the briefs or the majority opinion holds that a determinate period cr special term can be added to a limited constitutional term, and especially can it not be added to two consecutive terms where a constitutional ¡provision pro-, hibits a person from holding more. than, two> such •terms. The writer of the majority opinion understood the force of this rule, because in both: opinion and syllabus he says that the .constitutional .term of the *868sheriff is for two years certain and for an indeterminate and uncertain period thereafter, designated by the phrase, “and until their successors shall be qualified.” No court or judge has been so reckless as to say that the hold'-over provision included a determinate and certain period fixed by the legislature, and this court has substantially declared that a fixed intervening period, like the one in question, is an exceptional term and cannot be added to two consecutive terms.
It was not necessary to watfder off into other states whose constitutions are unlike our own for authority in this case. From Hagerty v. Arnold, supra, decided in 1874, down to The State v. Andrews, supra, decided a few days ago, it has been uniformly held that a fixed interval of time, like the one in question, is an exceptional term, and not a part of a regular one. The question for determination in Horton v. Watson, 23 Kan. 230, was almost identical in principle with the one we have here. The legislature of 1875 readjusted the terms of county treasurers by postponing the commencement of the term from the first Tuesday of July, 1876, until the second Tuesday of October, 1876, and the question there, as here, was whether an interval of three months and one week constitutes a part of the preceding regular term, or was a special term. Watson, who had held the office for two terms before the intervening period, was elected for the succeeding regular term, and during the interregnum another person, duly appointed, occupied the office. It was contended that Watson was ineligible becaus'e the interval was a part of his second term, and the fact that some one else had occupied the office during the interval would not qualify Watson to take the succeeding term. The court, however, expressly held that the in*869terval was no part of either the preceding or succeeding regular terms. Speaking of the constitutional limitation, that county officers shall hold their office for the term of two years and until their successors shall be qualified, the court said:
“They shall hold the office during their full term of two years ; and then, in addition to their term, they shall hold until their successors are qualified. This addition is evidently no part of their term. It comes out of their successor’s term, and is a part of their successor’s term. The beginnings and the endings of terms are fixed by law. But a successor may give a portion of his own term to a predecessor, if he chooses. . . . If he gives a portion of his term to his predecessor, it being no part of his predecessor’s term, it has been held that the sureties of his predecessor are not responsible for defaults occurring during such period of time. . . . Watson’s second term expired absolutely and completely on the first Tuesday of July, 1876, and his third term did not commence until the second Tuesday of October, 1876. Hence, here was an interregnum, an intervening space of time of over three months, separating these two terms and not belonging to either.” See, also, Monger v. County Commissioners, 22 Kan. 318 ; Johns v. Hastings, 22 id. 464; Riddle v. School District No. 72, 15 id. 168.
In the majority opinion it is said that the remarks of the court in the Watson case are not applicable to the facts in this case, and when “wrenched’’ from their connection and deprived of the light thrown upon them by their appropriate facts they become quite misleading when applied to this case. In that case the question was whether the interregnum was a part of Watson’s second term or a term of itself; and the question here is whether the interregnum is a part of the defendant’s second term or a term of itself. In discussing the hold-over provision of the constitution as applied to county officers, the court, *870in the Watson case, noted the exception as to sheriffs and county treasurers and said :
“Sheriffs and county treasurers, like other officers, may hold their offices until their successors are qualified, but they cannot hold in any case for more than two consecutive terms. When their second term ends their right to hold the office ends. They cannot then hold over and into their successor’s term, as at the close of their first term they might, or as other county officers might. The constitution does not say that they may hold the office for two consecutive terms and until their successors are qualified, but it says they shall not hold for more than two consecutive terms.”
If the period from January, 1902, to January, 1903, is an exceptional term, something in addition to thé regular terms, then it cannot be added to defendant’s term, because, defendant having already held two consecutive terms, the constitution inhibits the addition of another, whether it be regular or exceptional.
In Davis v. Patten, 41 Kan. 480, 21 Pac. 677, the question was again involved whether anything can be added to the constitutional limitation of two consecutive terms. Patten was elected county treasurer at the organization of thé county, and served a period of about six months, when he was elected for a regular term. At the end of that time he was elected for a second regular term, and the question arose whether the special term of six months, which preceded the first regular term, could be added to the constitutional limitation of two consecutive terms. The court quoted approvingly the rule laid down in the Watson case, saying that the constitution limits the incumbency to two terms; that it does not mean four years, but it says that the treasurer shall not hold the office for more than two consecutive terms. “ Now,.if he should hold the office for a part of one term and then for the *871whole of the next term, he could not be eligible to be elected for still another term, for that would give him the office ‘for more than two consecutive terms.’ ” It is said that the statement of the law is exactly applicable to the Patten case; that Patten had held the office for a part of one term and the-whole of the next, and, therefore, was not eligible for still another term, and that without respect to whether the term was called an interregnum or exceptional term. It was said that “whatever it may be designated, it is a holding of the office which, when added to two regular terms, would exceed the constitutional limit of continuous service.” In referring to the Hagerty v. Arnold case, supra, it was said :
“Nothing in the decision, however, sanctioned the idea that an exceptional term or other period of service could be added to the constitutional limit restricting the continuous service of a county treasurer to •two consecutive terms. . . . When that time expires his right longer to hold the office absolutely ends, although his successor may not be ready to assume its duties. If he cannot hold it for a few days at the end of the period until his successor qualifies, how can six months be added to the limitation at the beginning of his time of service ? The object of the constitutional restriction, as stated in Horton v. Watson, supra, was to require him to go out of the office for a time, and deliver to afiother all the funds, books, papers, etc., belonging to the office, so that a full, complete, honest and final settlement could be made with him.”
These cases not only determine that the interval of time between the regular terms is a term of itself which cannot be added to a regular term, but they plainly distinguish between such fixed periods and the hold-over provision of the constitution which applies to a succession of terms. An officer can hold for *872the constitutional limit and for an indeterminate and uncertain period thereafter until his successor is qualified, but when the plaintiff, who was appointed by the governor, as the' constitution provides, qualified, he was entitled to claim the office of sheriff for the exceptional term and until his successor was elected and qualified. In Wilson v. Clark, supra, the interregnum or period of one year was not only treated, but it was specifically designated as an exceptional term, and it was further said that it was competent for the legislature to provide for the filling of such exceptional term. In The State v. Andrews, supra, Justice Ellis not only designated this period of one year as an exceptional term, but expressly recognized that the court had alway held such periods to be exceptional terms. In speaking of the exception as to sheriffs and treasurers who have held two full terms he said: “For which reason it may be adjudged that they are ineligible to hold for the exceptional one created by this a,ct.” Further, in arguing as to the inapplicability of cases presented by the defendant, he remarked:
“In the view we have taken, and under the prior decisions of this court sustaining the creating by legislative enactments of exceptional terms, none of the authorities presented by defendant in this case is applicable. No one of these cases relates to an exceptional term established by special legislation with authority thereby granted to the executive to supply the same.”
Thus we see that the,, court has from the beginning to the end held that á fixed period of time between two regular terms is an exceptional or special term, and therefore cannot constitute a part of a regular term under the hold-over provision of the constitution. So, I will say, as was said in the Patten case, it is immaterial whether the period of time from the second *873Monday of January, 1902, to the second Mónday of January, 1903, be called an interregnum or an exceptional term. Whatever it may be designated, it is a holding of the office, which time, added to the second regular term already held by this defendant, would exceed the constitutional limit of continuous service.
The decisions cited in the majority opinion from other states are founded upon constitutional provisions declaring that the officers shall hold until a successor is elected and qualified, while ours is until a successor is qualified. The distinction between the two provisions was discussed in Wilson v. Clark, supra, and that difference renders the cases cited inapplicable. The defendant being ineligible to hold the office for the exceptional term, the duty, under the general provisions of the statute, devolved upon the governor to fill the vacancy by appointment.' The plaintiff was duly appointed, he duly qualified, and is entitled to the office".