(dissenting) :
I dissent, believing the main opinion’s reasoning and conclusion are an oversimplification of the issue here.
It is axiomatic that generally government is best that governs least, — all with the consent of the governed. Hence, any doubt as to eligibility for high public office should be resolved by the electorate in a reserved power, federal-state republic as we conceive it. Disenfranchisement is the seal of doom for an erstwhile free people, —and in my opinion the subject legislation here is not only an attempt to emasculate an historical, traditional and absolute right of the people to vote for judges of their choice, but a devious method to give to the state executive department a wholly unauthorized prerogative to appoint judges, while reserving such right of choice to the people only as to the legislative and executive branches.
It is no answer to say the federal system condones such a system, else the Tenth Amendment becomes meaningless, or totally ignored as seems to have been the wont of the federal judiciary, which this writer, for one, has no bent for emulation by the states.
The conclusion of the main opinion precludes three distinguished members of the Bar, — one its President, — from presenting their names to their peers for election or rejection at the poles, — as has been the custom for 75 years, from statehood until this case came along. These three eminent lawyers and the battery of lawyers representing them, do not share the reasoning and conclusion of the main opinion, — which is some indication that the subject legislation not only is unconstitutional for vagueness and obfuscation, but, if approved, is offensive to our concepts of reservation of choice to the people, including the little people as well as suspicionable pressure groups. In this respect, it is highly significant that the amendment around which this litigation revolves, was initiated by S. J.R. No. 2, put to the people in the 1944 general election, and passed on November 7, 1944, made effective as of January 1} 1945. This effective date is important, I think, as I will point out later.
What I say above seems to have been reflected early in 1895, three years before statehood, when, at the Constitutional Convention at Salt Lake City, Mr. D. C. Ei-chnor, delegate from Salt Lake City’s First Precinct, on April 22, 1895, in a debate re*290volving around election of Supreme Court Associate and Chief Justices, allowed that he ."was not afraid of the people” and that "I' believe in trusting this measure to the people.” Three days later, on April 25, 1895, Mr. C. C. Goodwin, delegate from the Salt Lake City Fifth Precinct, echoed Mr. Eichnor’s sentiments by saying that with respect to the Supreme Court justices, they should be “the best men for the place” and “all the people to vote on them.” The philosophy of these two gentlemen was carried from the Territory of Utah into the State of Utah in 1896, where it firmly was impacted in the Constitution, until 1944, when some people may have been confused when authority was urged to invest the people at the polls, significantly while we were preoccupied by World War II, to amend the Constitution to read as it does today, in Art. VIII, Sec. 3, which obviously was designed to streamline the method, of acquiring judges, but equally to preserve the historical and traditional institution of electing these judges to office. The main opinion does not mention this basic constitutional interdiction, but simply recites Sec. 20-1-7.1, U.C.A.1953 as amended in 1967, which pretends to but does not implement or follow Art. VIII, Sec. 3. That amendment clearly says, (after talking about the now deceased aphorisms anent prohibitions against "partisan political considerations” and freedom “from influence of ■ anjr person whomsoever”): ". . . provided further that the method, oí..elect-ing such judges in effect when this-amendment is adopted shall be followed -■ until changed by law.” The word “method”-is the subject of the phrase, and “shall 'be followed,” the predicate. No one can- assume other than “until changed by law” applies to the method of “electing” judges, not to the fact of election, — which means dropping something in a ballot box to reflect a choice, and not to sanction a gubernatorial congratulatory letter designating a person belonging to his own political party, —as has been the case in appointments of supreme and district court justices for over 20 years. The phrase "... provided further that the method of electing such judges in effect when this amendment is adopted shall be followed until changed by law,” can mean nothing other than what it says, and the “method ... in effect at the time when this amendment” was adopted on November 7, 1944, and since 1896, was the method found in Art. VII, Sec. 2, of the Constitution, and Art. VIII, Sec. 5 (see Utah Code Annotated 1943), that which existed on November 7, 1944, before the effective date of the amendment resulting from S.J.R. 2 of the 1943 Legislature (January 1, 1945), to the effect that “The Judges of the Supreme Court shall be elected by the electors of the State at large,” and district court “judges shall be chosen by the qualified electors. ...” Not only did these provisions perpetuate *291the traditional requirement of electing,— not appointing Supreme and District Court judges, — but,so did the very amendment of 1944 which the main opinion fails to mention, and which the so-called attempt to implement is suggested in Title 20-1-7.1, when such amendment clearly says such an election cannot be implemented except as to method of election, — not construable to mean the elimination of the requirement that such judges must be elected.
The main opinion quotes only one part of Sec. 20-1-7.1, concerning an appointment by the Governor in the case of a vacancy, except where an incumbent, under 20-1-7.7, files for office, in which case a lawyer, such as the petitioners here, could file and take his chance to be elected. The remainder of Sec. 20-1-7.1, provides that where such an appointment is made from a list of three given to the Governor, the appointee even in that event “shall be subject to election by the voters at the time and in the manner provided in this act,” — clearly indicating that there was no legislative intent to abolish the time-honored election of judges in this State, and negating any possible suggestion that the Governor should have any power to appoint, without an election, a judge for a full term, as is suggested or implied in the main opinion. The vacancy about which the main opinion talks, (that may be a misnomer since there really is not a vacancy which that term connotes, created by death, resignation, and the like, but only a future term to be filled somehow) is not restricted in the main opinion to one persisting only until the next. General Election, as is reflected in all other statutes which apparently are designed to implement Art. VIII, Sec. 3, but all of which talk about and provide for an election by the people, at the first opportunity, — which is the General Election. To say otherwise is to destroy by some sort of statutory implementational legerdemain, the established constitutional interdiction, conceived, born and nourished by history, tradition, Messrs. Eichnor and Goodwin, the Constitutional .Convention, 75 years of acceptance, the 1944 Amendment of Art. VIII, Sec. 3 itself, the language of all so-called implementing statutes, all of which use language making it perfectly clear that the framers of the Constitution and the legislatures and the people, since statehood, had no bent for such destruction.
Any argument that the Judges’ Retirement Act1 makes judges ineligible to run for re-election, and thus makes the position appointive, cannot and should not by any strained logic or rhetoric eliminate the people’s right to vote for their judges by any quirk of legislative negligence in failing to recognize such constitutional right. Any statute purporting to invade that right by implementation is unconstitutional under *292prevailing constitutional sanctions and should be declared to be so.
The Attorney General says in his brief that “The wisdom of the manner of appointment and election of judges might be challenged by some, but that is a legislative determination.” Not so, if that is meant to give the impression that the legislature can eliminate the election of judges. The manner of appointment might be, and the method of election might be, but the election of judges is not. That was reserved to the people in 1896 and to this day, and the Attorney General has not deigned either to trace, discuss, analyse or comment on the historical or constitutional inter-dictions or sanctions anent the issue before us, or their basics, but chooses to conclude, apparently without citing any constitutional authority therefor, that some legislation can: Change basic, established, written constitutional provisions and concepts without .another constitutional amendment decided by the people by choice at an election.
It is rather obvious that the Retirement Act has created a situation where an incumbent cannot run for re-election, leaving a vacuum or hiatus where there is no specific provision for the election of his successor. The constitution has never been amended to eliminate the necessity for election of judges by the people. The main opinion obviously has in mind the Retirement Act because that is the one involved in the factual situation of this case. Also, a so-called implementing statute, which simply attempts to change the Constitution of Utah to eliminate the constitutional requirement of the election of judges, by unauthorized legislative constitutional change and by equally unauthorized judicial legislation, to effect such change.
The petitioners should have their names placed on the ballot, having tendered their filing fees at the time and place appointed, leaving it up to the people to elect them to the positions they seek, or to defeat them with a write-in vote, or for the Governor to call a special session, if possible, to rectify what I think will be an unconstitutional disenfranchisement of the people who are invested with every even debatable right to elect their judges without the benefit of ambiguous, doubtful, historical, legal prestidigitation, or ill-advised ecto-plasmic legislation.
. Title 49-7-1.1, Utah. Code Annotated, 1953 (Ch. 122, Sec. 1, Laws of Utah 1969).