(specially concurring).
I concur in the result reached hy the majority opinion, but disagreé with the law announced in the syllabus.
A part of 70 O.S.19S1 § 3-1, which is omitted from the majority opinion is as follows:
“No person shall be allowed to file as a candidate for nomination or election to the office of county Superintendent of schools nor shall the name of any person appear on any election ballot as a candidate for such office unless he then has the qualifications herein prescribed.”
My concurrence in the result of the majority opinion is based upon the holding of the trial court, to wit:
“The Court will further hold that the portion of the statute with relation to the qualifications of county superintendents of schools wherein the Legislature deems to delegate authority to the State Board of Education to control who might file, run for, or hold, the office of county superintendent by virtue of the necessity of an appropriate certificate, construed in connection with the statute, puts no limitation upon the requirements of such certificate, is an unauthorized delegation of the Legislative power and in violation of the constitution ; that the statute is further unconstitutional for the reason it is indefinite in such manner that any person attempting to file for public office is unable to determine what the requirements for that office are.”
That portion of the statute declaring no person is eligible to file as a candidate, in the absence of the enumerated qualifications, leaves squarely for this court’s consideration the question as to the correctness of the trial court’s adjudication that the provision requiring any candidate to hold a valid administrator’s certificate at the time of' filing as a candidate for the office, was unconstitutional and void.
The plaintiff in error, in her brief contends : “The involved provisions of the 1949 School Code are not unconstitutional, and the trial court erred in not so holding.” And then presents argument and cite authorities in support of said contention.
The defendant in error, in his brief states: “The involved portion of the 1949 School Code (70 O.S.1951) are a nullity for the reason that they delegate legislative power and authority to the State Board of Education in violation of Constitutional Prohibitions”, and then presents argument and cite authorities in support of his contention.
The constitutionality of the act was passed on by the trial court and properly presented in this appeal and should be decided in an opinion promulgated by this court.
If the rule announced in the majority opinion becomes the law it will permit a person who has never lived in this state, but is a resident of some other state, to file for qounty superintendent in any county in this state by making a fa.lse affidavit, which may not be discovered at the time of filing, or until after the election and then move into Oklahoma in time to qualify before the date to take office. I am not willing to place that kind of a construction on said statute.
If a person is not qualified to file for an office as required by statute, but does so by making a false affidavit, thereby obtaining such filing by fraud, the filing is a nullity. This rule is aptly stated in the text of 42 Am.Jur. 910, Public Officers, Sec. 39, which reads as follows:
“The courts are frequently called upon to determine the question as to when the conditions of eligibility to office must exist, whether at the time of election, the commencement of the term, or the induction into office. In ascertaining this matter, the language used in the constitutional or statutory provision declaring the qualifications is to be considered. It may expressly or by *864necessary implication specify the time when the required eligibility must exist. Where such:is the case, there can be no question but that the candidate must possess the necessary qual'ifica-tions at that time. * * *’•