(concurring and dissenting).
I concur in the holding regarding the District Court Judges for the reason that to hold otherwise would create confusion and uncertainty. However, I dissent from the holding as to Justice Hall’s situation.
U.C.A.1953, 20-1-7.61 provides:
If a vacancy occurs ... in the office of a justice of the Supreme Court
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(b) The governor shall forthwith appoint to fill such office.
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(d) Subject to the appointee being retained in the office by the voters as provided in section 20-1-7.7, the person appointed pursuant to this section shall serve for the unexpired term of his predecessor in office or shall serve for the full term of office provided by law in case the appointment is to fill a vacancy in the office of a justice or judge whose term has expired or is to fill a vacancy created by the establishment of a new judicial office.
The term of office of Justice Henriod had expired and Justice Hall was appointed to the full term of office.
The next section of the statute (20-1-7.7) seems to me to be limited to appointments for an unexpired term because in stating that those appointed should run for election, it reads, shall hold the office for the remainder of any unexpired term.
Justice Hall is not involved in any unexpired term. It surely was not contemplated that he was appointed for a period of only one year, ten months and seven days and then would run for an additional term of eight years, one month and twenty-three days. The statute provides that the, “term of office of a justice of the Supreme Court, shall be ten years and until his successor is elected or appointed and qualified.”2
It is essential that the appointment be for a full term in order to assure that there will be a Chief Justice to preside over the Court. Article VIII, Sec. 2 of our constitution provides that:
The judge having the shortest term to serve, not holding his office by selection to fill a vacancy before expira*837tion of a regular term, shall be the chief justice, .
If Justice Hall is required to run for election to a partial term then he, or his opponent, will be selected by the voters to fill an unexpired term and cannot be the Chief Justice. Under the opinion, no judge hereafter chosen for the office can ever be the Chief Justice unless he be young enough to run successfully for re-election.
Under our statute which now requires a justice to resign upon reaching age 72, the majority opinion will create all sorts of mischief regarding the determination of the Chief Justice.
To avoid the likelihood of the problem, the statute should be construed to limit appointments followed by election to cases where the appointment is made to fill an unexpired portion of a term. If that be done then the law is clear:
. shall serve for the full term of office provided by law in case the appointment is to fill a vacancy in the office of a justice . . . whose term has expired . . . 3
The appellant in this case contends that selection does not mean election and therefore a person elected, to the unexpired term of a justice will be Chief Justice whenever he has the shortest remaining time to serve. This would mean that one elected in November for a term which would end on the first Monday in January following would be the Chief Justice provided he defeated a justice who had been theretofore appointed to an unexpired term. An example would be in case the Chief Justice reached age 72 during February of his last year. The vacancy would be filled by appointment which would be good only until the fall election. The appointee could not be the Chief Justice before the election and so another justice would hold the position — but only until the election. Then the Chief Justice would be ousted, by the November successful candidate.
The Chief Justice should be a man of experience and this is assured if only those chosen for a full ten year term are eligible for the position. It seems folly to permit one elected for a six week term to be the head of the Court.
The majority opinion has no difficulty in providing that the District Judges are appointed for a term of less than two years and then may run for a full term of six years. Would that opinion give Justice Hall the same privilege of running for a full term of ten years? Consistency should so require. Also is the term six years from election or six years from January following. The same question would relate to the Supreme Court Justice.
For the reasons stated above I would hold that Justice Hall is appointed for a full ten year term and should not be required to run for election this year.
HALL, J., being disqualified, does not participate herein.. L.U.1967, ch. 35, § 7.
. U.C.A.1953, 78-2-1.
. U.C.A.1953, 20-l-7.6(d).