(concurring in part and dissenting in part) —I concur with the majority that the provisos of amendment 32 of the state constitution apply only to the vacancies in the offices of state legislators and not to any other partisan county elective office.
However, I cannot agree with the majority that chapter 100, §, 1, Laws of 1933, p. 415, is in conflict with Art. XI, § 6, of the state constitution, and that the governor has no power to appoint a county commissioner under this statute, which provides:
*536“Whenever there shall be a vacancy or vacancies in the board of county commissioners of any county, the said vacancies shall be filled as follows:
“(a) If there shall occur three (3) vacancies, the governor of the state shall appoint two (2) of the said officers. The two (2) commissioners thus appointed shall then meet and select the third (3rd) and remaining commissioner. If the said two (2) appointed commissioners fail to agree upon selection of the third (3rd) after the expiration of five (5) days from the day the officials were appointed, then the governor shall appoint the remaining commissioner.
“(b) Whenever there shall be two (2) vacancies in the office of county commissioner, the governor shall then appoint one (1) commissioner, and the two (2) commissioners then in office shall appoint the remaining or third (3rd) commissioner: Provided, That if they fail to agree upon a selection after expiration of five (5) days from the day of appointment, then the governor shall appoint the third (3rd) commissioner.
“(c) Whenever there shall be one (1) vacancy in the office of county commissioner of any county in the state, the two remaining commissioners shall appoint to fill the vacancy: Provided, That should the two (2) commissioners fail to agree upon a selection after the expiration of five (5) days from the day the vacancy occurred, then the governor shall appoint the remaining commissioner.” [cf. RCW 36.32.070.]
The fundamental principles which guide the court in its approach to any case involving an attack upon the constitutionality of a statute are: that the state constitution is not a grant, but a restriction of the law-making power, and the power of the legislature to enact all reasonable laws is unrestrained except where, either expressly or by fair inference, it is prohibited by the state or Federal constitution. Where the validity of a statute is assailed, there is a presumption of the constitutionality of the legislative enactment, unless its repugnancy to the constitution clearly appears or is made to appear beyond a reasonable doubt. Port of Tacoma v. Parosa, ante p. 181, 324 P. (2d) 438, and cases cited therein.
Where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional, *537it should be given an interpretation rendering it valid. This fundamental principle has been repeatedly applied by this court. State ex rel. Campbell v. Case, 182 Wash. 334, 47 P. (2d) 24; and Casco Co. v. Public Utility Dist. No. 1, 37 Wn. (2d) 777, 226 P. (2d) 235.
In 1901, it was held, in Farquharson v. Yeargin, 24 Wash. 549, 64 Pac. 717, that Laws of 1899, p. 26, providing that the governor should appoint three commissioners for Ferry county, which was created and organized under that act, that this provision did not contravene that provision of the constitution which required that all county officers should be elected by the people. Provisions of this sort, said the court, do not apply to cases of emergency, such as the creating of the usual county offices, on the organization of a new county, the power to fill county offices provisionally in new counties being a necessary incident of the legislative power to create new counties.
In another emergency situation, where all three of the county commissioners had been recalled, and, under legislative authorization, the governor appointed two commissioners who in turn appointed a third, this court held that Art. XI, § 6, had no application, since this contingency was not contemplated by the framers, and, it being necessary to prevent an entire cessation of county government through the vacancy of all the offices of the county commissioners, the power was necessarily lodged in the legislature to provide for the filling of these vacancies. State ex rel. Gilbert v. Dimmick, 89 Wash. 182, 154 Pac. 163. Referring to the holding in Farquharson v. Yeargin, supra, the court reaffirmed that the legislature has power to authorize the governor to fill vacancies in the office of the county commissioner, where an emergency arises which was not provided for in the constitution.
In both of those cases, all of the offices of county commissioners were vacant, and there was clearly nothing that could be done under Art. XI, § 6, providing for the filling of vacancies by action of the board, since the board in each case was non-existent.
*538As we said in State ex rel. Gilbert v. Dimmick, supra:
" “The county commissioners of a county are the business agents of the county, and the ordinary business of a-county cannot be conducted without their , authorization.- It folr lows that when all the offices of county commissioners in a county become vacant, there is necessarily a cessation of county government, and there must be some power lodged somewhere to prevent such hiatus. This has been done by the legislature.”
The question is whether, when there is only one vacancy on a board, and the two remaining commissioners fail to agree on an appointment, there results a similar emergency for which no provision is made in the constitution. I think that it does, for, although a complete cessation of county business need not follow, it may do so if the two remaining commissioners are unable to agree on any matter- which comes before them. They have no duty to agree, nor is it easy to imagine, if such a duty existed, how it could ever'be enforced. RCW 36.32.130 provides that, when only two members are present at a meeting of the board and a division on any question takes place, the matter under consideration shall be postponed to the next subsequent meeting. It is plain, that if the board is composed of only two members, such postponement could reoccur indefinitely, with the result that the proper conduct of the business affairs of the county would be seriously hampered if not halted altogether. At the same time, there would be no breach of duty involved on the part of either commissioner.
It is insisted, however, that this court has held a similar provision unconstitutional in State ex rel. Pendergast v. Fulton, 37 Wash. 271, 79 Pac. 779. In that case, the legislature had provided that where a vacancy occurred on the board of commissioners, a judge of the superior court should act with the remaining commissioners in appointing an individual to fill the vacancy. Such a vacancy had occurred on the board of commissioners for Okanogan county, and the remaining commissioners, ignoring the statutory provision, had agreed upon an appointment and had proceeded to fill the vacancy. The action in quo warranto was *539brought to oust the appointee, the contention being that the commissioners could not act without the concurrence of the superior judge. It was held that the appointment was valid, the court saying:
“There is no question but that a commissioner is a county officer, and that under the provision of said § 6, art. 11, the remaining members of the board of county commissioners have full authority to appoint a suitable person to fill any vacancy on the board, and that such authority is also granted by Bal. Code, § 346, above mentioned [providing that, when a vacancy occurred in any county office, the commissioners should appoint a suitable elector of the proper county to fill such vacancy]. State ex rel. McMartin v. Whitney, 9 Wash. 377, 37 Pac. 473.”
In other words, the holding of the court was that the commissioners acted within their authority in making the appointment and that the judge was not a necessary party to the proceedings. The question before the court in the present case did not arise and was not considered, since the remaining commissioners did agree on an appointment. Had they failed to agree, as the King county commissioners did in this case, an entirely different question would have been presented.
Reliance is also placed upon State ex rel. Parks v. Tucei, 175 Miss. 218, 166 So. 370. In that case, a city councilman’s term expired two days after his resignation. Three city officers (the mayor and two councilmen) remained, who were authorized to transact municipal affairs. It was held that there was not such an emergency as would justify an appointment by the governor on the failure of the remaining city officers to name a successor. The decision was correct on the facts. Only one working day remained before the newly elected councilman was to take office, and since there were three officers capable of acting in the interim, no deadlock was likely. Clearly, no emergency existed. But the facts are entirely different from those presented in this case, and the holding has no application here.
It seems plain that the people, in adopting Art. XI, § 6, had in mind that appointments should be made by a full *540board, at least where a. failure of agreement on the part of those constituting a quorum results in a stalemate, as it necessarily does where two constitute a quorum, and that no provision was made for reconstituting the board, where one of its offices is vacant and the remaining commissioners are unable to agree on the choice of a third. This being the case, and a board composed of three members being necessary for the efficient transaction of county business, the legislature was empowered to provide for this contingency, and the statute making such provision does not contravene Art. XI, § 6, of the constitution.
I disagree with the majority that the respondent is wrongfully holding the office of county commissioner, namely, that he is ineligible by virtue of the provisions of Art. II, § 13, which reads:
“No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected.”
Provisions of this sort should be narrowly construed in favor of eligibility. State ex rel. Johnson v. Nye, 148 Wis. 659, 135 N. W. 126; State ex rel. Hawthorne v. Wiseheart, 158 Fla. 267, 28 So. (2d) 589. Eligibility to an office in the state is to be presumed rather than to be denied, and any doubt as to the eligibility of any person to hold an office must be resolved against the doubt. State ex rel. Weston v. Schragg, 158 Wash. 74, 291 Pac. 321.
It is the position of the appellant that Art. II, § 13, is clear and unambiguous, that it means that a legislator may not hold an office during his legislative term if the emoluments of that office were increased during his term, regardless of when the increase becomes effective. However, this provision was not intended to prevent the holding of such an office by a legislator if the increase in emoluments cannot possibly apply to him during the term for which he is elected. The purpose which provisions of this kind are meant to serve, is ably expressed by Story, in his work on the Constitution of the United States, § 867, as follows:
*541“The reasons for excluding persons from offices who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness.”
If this was the purpose of the framers, it is reasonable to assume that the provision was meant to apply where the legislator, by appointment or election to the newly created •or enhanced office, will enjoy the benefits of the legislative action. This would mean, of course, that he could never be qualified to hold a newly created office during his term, but it does not mean that he is unqualified to serve in a preexisting office where he cannot possibly enjoy the increased emoluments during the term for which he is elected or appointed. The provision was interpreted thus in State ex rel. Todd v. Reeves, 196 Wash. 145, 82 P. (2d) 173, 118 A. L. R. 177, wherein we held that a legislator was eligible to be elected judge of the supreme court, during his term as legislator, even though the legislature of which he was a member had enacted a law providing for retirement pay for judges, since he would not be eligible for such pay during or at the end of his first term. The question in the case, said the court, was “whether there is any increase in the emoluments of the office effective during the six-year term for which the respondent McAulay has filed his declaration.” (Italics mine.)
The appellant attempts to distinguish this case, maintaining that it was decided on the sole question of whether retirement pay constitutes an emolument, but the very quotation on which it relies to demonstrate this contention belies it:
“While the provision for retirement makes the office more attractive, the fact remains that no emolument, within the meaning of Sec. 13, Art. 2, supra, could attach during respondent McAulay’s first six-year term.” (Italics mine.)
The case is controlling of the question presented here.
I do not agree with the position of the appellant that the case should be overruled. The provision is not free from ambiguity when it is considered that it was designed to *542afford some assurance that legislators, in voting on matters of this sort, would not be influenced by their own aspirations to the office in question, and that no aspiration of this kind can be served where the increased emolument will not be available to the legislator during the term for which he is elected or appointed. Significantly, the prohibition applies only during the legislator’s term in the legislature. If, as soon as his legislative term expires, he may aspire to the new office, or the office the emoluments of which have been increased, it must follow that the people had in mind only that he be ineligible to enjoy the fruits of his legislative endeavors during his term in the legislature. This being the case, an increase in emoluments which cannot be received by the legislator during the term of office for which he is appointed or elected, does hot disqualify him from ■holding that office.
In State ex rel. Pennick v. Hall, 26 Wn. (2d) 172, 173 P. (2d) 153, it was held that under Art. II, § 13, a legislator was ineligible to become a candidate for an office, the emoluments of which had been increased during her term in the legislature, even though her term in the new office would not begin until the expiration of her legislative term. In that case, there was no question but that the increase in emoluments would be receivable by the legislator, and the only issue before the court was whether her eligibility should be determined as of the time she filed her candidacy or as of the time she took office. The case is therefore not in point.
Thus the law, as announced prior to the majority’s interpretation, was that the respondent is eligible to hold the office of county commissioner and is eligible to be a candidate for election for the unexpired term of the deceased commissioner.
The majority’s conclusion to the contrary is based upon the assumption that no cessation of county government can occur where a board is composed of only two members. The legislature has recognized in RCW 36.32.130, supra, that a cessation of county government can occur.
*543Furthermore, the majority has failed, or refused, to apply the long-established rules of constitutional and statutory interpretation set forth in Port of Tacoma v. Parosa, State ex rel. Campbell v. Case, and Casco Co. v. Public Utility Dist. No. 1, supra.
The judgment denying the writ should be affirmed.
Donworth, Finley, and Hunter, JJ., concur with Rosel-lini, J.