dissenting.
Not being in agreement with that part of the opinion adopted by the majority of this court which adjudges that *100the amendment to section 1, article IV of the Constitution, adopted in 1936, was effective to totally abolish the constitutional existence of the office of commissioner of public lands and buildings, we respectfully dissent therefrom, and, in support of our position, submit the following:
The text of section 1, article IV of our Constitution, as now amended, is set forth in the majority opinion and will not be repeated here. This section was the only section submitted to the electorate for the purpose of amendment, and, so far as here involved, the sole amendment attempted was the deletion therefrom of the words, “Commissioner of Public Lands and Buildings.” It was a repeal by omission, and no more. State v. McCafferty, 25 Okla. 2, 105 Pac. 992; Adams County v. Scott, 117 Wash. 85, 200 Pac. 1112; Spokane & Eastern Trust Co. v. Hart, 127 Wash. 541, 221 Pac. 615.
The following sections of our Constitution were never submitted to the people at the election of 1936 for the purpose of amendment, and never expressly repealed, and still remain an integral part of our fundamental law, viz.:
“The governor, secretary of state, treasurer, attorney general, and commissioner of public lands and buildings shall, under,the direction of the legislature, constitute a board of commissioners, for the sale, leasing, and general management of all lands and funds set apart for educational purposes, and for the investment of school funds, in such manner as may be prescribed by law.” Const. art. VII, sec. 1.
“If the office of * * * commissioner of public lands 'and buildings, * * * shall be vacated by death, resignation or otherwise, it shall be the duty of the governor to fill the same by appointment, and the appointee shall hold his office until his successor ” shall be elected and' qualified in such manner as may be provided by law.” ' Const. art. IV, sec. 21.
Sections 3, 4, and 5, of article XVII, provide for the salary of. the “Commissioner of Public Lands and Buildings,” for his biennial election, and for his term of office. In ad*101dition, section 6 of this article provides: “The legislature shall pass all laws necessary to carry into effect the provisions of this Constitution.”
The rule this situation invokes we quote from the opinion of the majority, which they approve but fail to follow, viz.:
“A constitutional amendment becomes an integral part of the instrument and must be so construed. It must be harmonized, if possible, with all other provisions, and effect must be given to every section and clause as well as the whole instrument.” Luikart v. Higgins, 130 Neb. 395, 264 N. W. 903. See, also, Hooper Telephone Co. v. Nebraska Telephone Co., 96 Neb. 245, 147 N. W. 674; Cooley, Constitutional Limitations (8th ed.) 129.
It is obvious that there is nothing in section 1, article IV, as amended, which is in any manner in conflict with or repugnant to the several sections of the Constitution already quoted herein.
If, then, we fairly apply the rule above quoted to the situation now confronting us, the conclusion inescapably follows that the commissioner of public lands and buildings remains a constitutional officer within the terms of the definition, viz., “Any of those officers whose tenure and term of office are fixed and defined by the Constitution.” 12 C. J. 1294. See, also, Foster v. Jones, 79 Va. 642, 644. His office, therefore, still remains a constitutional office. Constitutional offices are “offices which, as contradistinguished from legislative or statutory offices, are denominated constitutional, such as are governmental in their nature, as for example the executive, judicial, or legislative offices of the state or any political division thereof. All these are either created by or provided for in the Constitution.” 12 C. J. 1294. See, also, People v. Scheu, 60 App. Div. 592, 69 N. Y. Supp. 597.
In this connection, • this court has construed section 1, article VII, in the following language: “By section'l, article 8, of the state Constitution (how Const. art. VII, sec. 1) the sole power to manage; loan, and invest the per'ma*102nent school funds of the state is lodged with a board .composed of the governor, secretary of state, treasurer, attorney general, and commissioner of public lands and buildings ; and said board cannot be deprived of its functions by-legislative enactment, nor can the legislature confer authority upon a single member of said board, or any other person, to invest any portion of said trust funds.” State v. Bartley, 40 Neb. 298, 58 N. W. 966. See, also, State v. Bartley, 41 Neb. 277, 59 N. W. 907.
Thus, there are vested in the members of this board constitutional functions of a special nature, not subject to termination by legislative action, which they as members of the board are constitutionally required to carry out and perform. In view of the constitutional duties thus entailed on them, and the capacities in which they are performed, they must be deemed constitutional officers. The nature of the duties so imposed confers the distinction which their performance involves. The principle here involved is illustrated in People v. Hogan, 214 N. Y. 216, 108 N. E. 459. The following excerpt therefrom discloses the situation and the controlling application of this principle as made by the highest court of review of that state, in answer to the question:
“Is a member of the board of aldermen of the city of New York a constitutional officer ? We think he is, and for reasons which can be briefly stated.
“In the city of New York the power of apportioning the counties thereof into assembly districts is vested in ‘the common council, or if there be none, the body exercising the powers of a common council.’ Const, art. Ill, sec. 5. That the board of aldermen is the body exercising the powers of a common council cannot be doubted. The Greater New York charter provides: ‘The legislative power of the city of New York, except as otherwise herein provided, shall be vested in one house to be known and styled as the “Board of Aldermen of the City of New York.” ’ Laws of 1901, ch. 466, sec. 17. In the absence of boards of supervisors— and there are no such boards in the counties making up *103the city of New York — there must be a ‘body exercising the •powers of a common council’ to perform the mandate of the Constitution in respect to legislative apportionment. This function is one of supreme importance in the government of the state. Its- importance is emphasized by the introduction into the Constitution itself of a provision for the judicial review thereof, requiring' that ‘any court before which a cause may be pending involving an apportionment, shall give precedence thereto over all other causes and proceedings, and if said court be not in session it shall convene promptly for the disposition of the same.’ Const. art. Ill, sec. 5. The board of aldermen of the city of New York, thus being the body upon which the Constitution has devolved this most responsible duty, so far as assembly districts are concerned, is a constitutional body, so long as it remains vested with this power of apportionment, and the aldermen who constitute the board are necessarily constitutional officers. The fact that they may cease to be such if the legislature should transfer the powers of a common council from them to some other body does not affect the question before us.”
It was accordingly adjudged that, as to election and tenure of office, the rights involved were determinable as of constitutional officers of the state of New York.
So, too, we believe the majority opinion correctly proceeds on the basis that, since the amendments of 1920 to sections 1 and 27 of article IV, the language of the section 1 here under consideration may no longer be deemed exclusionary. It also clearly appears that the constitutional powers vested in the commissioner of public lands and buildings, as a member of the board of commissioners for educational lands and funds, and the constitutional capacity created thereby, are vested exclusively by the terms of section 1, article VII, and in no manner derived from, or find their source in, section 1, article IV. It follows, therefore, that the repeal of all or a part of the latter section in no manner affects the powers created and vested by the terms of the former.
*104Furthermore, we are unable to accept the contention set forth in the majority opinion that all the constitutional provisions heretofore referred to herein as necessitating the continuance of the office of commissioner of publie lands and buildings as a constitutional office were, though not within the express terms of the purview of the amendment, repealed by implication. .
The maxim “leges posteriores priores contrarias abrogant” is one that has come to us as' part of our heritage of English law. That it is equally controlling as applied to conflicting statutory or conflicting constitutional enactments may be conceded. But the facts in the instant case do not bring it within the scope of the maxim. So far as involved in the present case, what was submitted to and voted, on by the electorate was a proposition to repeal a portion of section 1, article IV, by omission of the words “Commissioner of Public Lands and Buildings.” The proposition was carried and the deletion was made and the repeal accomplished.
Now, as two'bodies may not occupy the same space at the same time, so the force of the controlling maxim is that two affirmative inconsistent or repugnant acts covering the same subject may not coexist. But an amendment solely by omission is in substance a simple unconditional repeal of that which-the omission discloses. A simple repeal is not affirmative. It terminates an affirmation. When this is accomplished, its function is performed. It ceases to be. There can be nothing inconsistent or repugnant to what is absolutely repealed. Therefore, a repeal by simple, express and definite omission affords no basis for other or further repeals by implication. This conclusion is in harmony with the true interpretation of the controlling maxim, as disclosed by the precedents of centuries. Assuming it to be equally applicable to- constitutional enactment, and as limited to the question presented in this case, the proper statement of the rule is: “Every affirmative statute is a repeal by implication of a precedent affirmative *105statute, so far as it is contrary thereto.” Beal, Cardinal Rules of Legal Interpretation (2d ed.) p. 471.
The essential basis of- affirmative law or enactment, as a prerequisite to a repeal by implication, was recognized by the English courts as early as Dr. Foster’s Cafe, 6 Coke Rep. 56. Indeed, the principle finds still earlier approval. See, 7 Bac. Abr. Statute (D) p. 442. See, also, Ex parte Warrington (1853) 3 D. M. & G. *159, at p. *171; Hill v. Hall (1876) 1 Ex. D. 411, at pp. 413, 414; Garnett v. Bradley (1878) 3 App. Cas. 944, at pp. 965, 966. The American authorities, while not emphasizing the principle, disclose no substantial departure from it.
It follows that, both in form and substance, the proposed amendment was wholly insufficient to sustain any further or additional repeals by implication, and the several sections of the Constitution heretofore enumerated, and not expressly repealed, remain in full force and effect.
Indeed, the better view, therefore, seems to be that a proposition to so amend the Constitution as to abolish the office of commissioner of public lands and buildings should submit to th'e voters a definite, understandable provision. It should not require a voter to discern in advance an effect which, if the proposition is adopted, would confound lawyers, lawmakers, executive officers and courts. The proposition to change the Constitution by abolishing the office of commissioner of public lands and buildings was directed solely to a single section thereof, and the proposal was limited to the elimination of that office. There was no expressed purpose in the text submitted to the voters to change any other provision of the Constitution. Unchangéd sections thereof left the office of commissioner of public lands and buildings and the substantial constitutional duties of the commissioner undisturbed. If these are the better views, it follows that the abolishing proposal submitted to the voters November 3, 1936, was ineffective for any substantial purpose whatever, and the judgment should so declare.