(dissenting) — This case bears eloquent testimony to the celebrated dictum of deTocqueville that in America great political issues ultimately become legal issues to be determined by the courts. Here, even to the casual observer, it is apparent the political issue between the legislature and the Governor was whether certain superior court judge positions initially would be appointed by the Governor or filled by the election process. No compromise was reached. See, e.g., Laws of 1951, ch. 125, § 8, p. 318. The question before the court is whether in Laws of 1979, 1st Ex. Sess., ch. 202, p. 1784, the legislature successfully eliminated the ability of the Governor to make the initial appointments. The majority holds the legislature failed. I believe it succeeded, and thus I dissent.
As the majority indicates, the critical issue is: When did the vacancies for the positions of superior court judge in Cowlitz and Pierce Counties occur? In Fain v. Chapman, 89 Wn.2d 48, 51, 569 P.2d 1135 (1977), we held "A statute speaks from its effective date and no action may be undertaken pursuant to it prior to that time." In Fain, the effective date of the statute as provided by the legislature in Laws of 1977, 1st Ex. Sess., ch. 311, p. 1154, was November 1, 1977. This was also the date on which the new judicial offices were created, and the date on which the vacancy in the offices occurred. But for this provision, the act would have become effective on September 21, 1977. We held in Fain that, under the requirements of RCW 29.21.380(3), no election could be held in 1977 and that the Governor would appoint as of November 1, 1977, the effective date of the statute, the date the offices were created, and the date the vacancies occurred. The election would take place in November 1978.
Laws of 1979, 1st Ex. Sess., ch. 202, p. 1784 was enacted differently. No effective date for the statute was included in the legislation; therefore, the statute became effective 90 days after the adjournment of the 1979 legislature. Const, art. 2, §§ 1(c), 41. The 1979 legislature adjourned June 2, 1979. The statute became law September 1, 1979.
*681Laws of 1979, 1st Ex. Sess., ch. 202, § 1, p. 1784 is explicit: "the additional offices herein created for the county of Pierce [and Cowlitz] shall be effective January 1, 1981." (Italics mine.) The vice of the majority analysis is that it confuses the effective date of the statute which creates the offices with the date when the offices become vacant. While the offices were created as of September 1, 1979, clearly no one may hold the new office of superior court judge in Pierce County until January 1,1981, nor may the Governor make an appointment which is effective until that date. While the office has been created, there is no vacancy in the office until January 1, 1981, and it cannot be filled until that date.
Chapter 202 also provided for additional judges in Spokane, Clark, Snohomish and the Mason and Thurston districts, and created the new judicial districts of Chelan and Douglas Counties with two judges and Grant County with two judges. It can hardly be contended the statute did not go into effect on September 1, 1979, particularly since new judges in Spokane, Clark, Snohomish and Mason and Thurston were appointed and since have been elected to office.
In summary, in Fain v. Chapman, supra, the effective date of the statute and the date the judicial offices were both created and became vacant was the same. Here the effective date of the statute and the date the offices were created were the same while the date the vacancy existed was different.
Yelle v. Kramer, 83 Wn.2d 464, 520 P.2d 927 (1974), is cited by the majority for the proposition that "the effective date [of a statute] is the date on which a particular section becomes operative and not the time of its passage." In Yelle, the question was whether state officers who were to receive a pay raise on January 1, 1974, did in fact receive an increase in salary at the time of the passage of Laws of 1973, 1st Ex. Sess., ch. 137, § 110, p. 936. The issue arose because Initiative 282 passed in November 1973 reduced the amount of the salaries granted by Laws of 1973, 1st Ex. *682Sess., ch. 137, § 110, p. 936. This was alleged to be unconstitutional since it was claimed to diminish the salary of state elected officials during the term for which they were elected. The court, consisting of nine justices pro tempore, held that the salary which was to become effective January 1, 1974, was in fact not in effect until that date. In the meantime, the voters intervened with Initiative 282 which limited salary increases to 5.5 percent. Therefore, as the court said, "Accordingly, there was no reduction of salary of any state official or judge. On the contrary, there was a salary increase." Yelle, at 478.
The case before us is different in several vital particulars. First, specific language in the statute itself provides for the creation of the offices. They are in being just as all of the other offices to be voted on this year and to be filled in 1981 are in being. The office has been created as of September 1, 1979; it cannot be filled until the vacancy occurs on January 1, 1981. In Yelle, the court found in effect that the creation of the salary increase and its implementation occurred simultaneously. Nothing in the statute indicated otherwise. Here the legislature deliberately specified the creation of the office and the implementation of that creation as two different dates. Second, there has been no intervening action of the people as there was in the case of Initiative 282, nor can there be in the 1980 election. Const, art. 2, § 1. Third, there is no problem of constitutionally vested rights as in Yelle v. Kramer, supra. The general propositions outlined in Yelle v. Kramer, supra, are inappropriate for this case.
The defect in the majority position may be illustrated further: Three positions are up for election to the Supreme Court this year. The names of the candidates will be on the ballot. The office of Supreme Court Justice from January 12, 1981 to January 12, 1987, has been created (see Const, art. 4, §§ 2, 3; RCW 2.04.070, 2.04.071), but the office of Supreme Court Justice for the term 1981-87 will not be effective until January 12, 1981, at which time the terms of *683the three justices now sitting expire and those of the newly elected justices become effective. I see no distinction between this situation and that which exists in the case before us. Both offices have been created, they exist and Eire in being; both offices are now vacant (in State ex rel. New Wash. Oyster Co. v. Meakim, 34 Wn.2d 131, 208 P.2d 628 (1949), we adopted the proposition that a vacancy is a vacancy; they are not to be distinguished by how they occur (accord, Fain v. Chapman, supra)); both offices cannot be operative until January 1981. Both offices can and should be filled by an election in 1980. (The problem created by the legislation which designated January 1, 1981, rather than January 12, 1981, as the date when the judge would take office is dealt with effectively by the Attorney General in his opinion. Attorney General Opinion, June 20, 1980.
Given the decision in this case, the position of the majority on the veto power of the Governor (Fain v. Chapman, 94 Wn.2d 684, 619 P.2d 353 (1980)), and our decision in Fain v. Chapman, 89 Wn.2d 48, 569 P.2d 1135 (1977), it now seems to be impossible for the legislature ever to require the initial election of judges. This can hardly be what the framers of the constitution contemplated. It is certainly contrary to our views expressed most recently in Fain v. Chapman, supra, where we said that "the provision for election of judges set forth in our constitution is the 'prime and basic provision and precept' of that article and that the provision for filling vacancies is 'subordinate and supplementary thereto.'" Fain, at 55. The legislature, responding to our views expressed in Fain v. Chapman, supra, attempted to create the office and make the effective date of the legislation far enough before the 1980 election to allow for an orderly electoral process. In view of our repeated assertions of the primacy of electing judges over appointing them, we should adopt the interpretation of Laws of 1979, 1st Ex. Sess., ch. 202, p. 1784, which will implement the constitutional priority, not deny it.
*684Because of my conclusion, it is not necessary to discuss the question of the veto of section 6. Section 6 is surplus-age. With it or without it, the legislature has provided for the judges to be elected.
I dissent.