(dissenting).
1. At the time of his death, Judge Rogers held the position of sole nominee for the position of judge of the District Court, Fourth Judicial District, for a 6-year term commencing January 7, 1963. His death accordingly created a vacancy in such nomination which the legislature had previously made provision for filling. Thus, Minn. St. 202.14, subd. 1, provides:
“A vacancy in a nomination exists when after the primary election *365any person who was nominated to a nonpartisan or political party office dies, withdraws or for any reason ceases to be the nominated candidate for that office. When a vacancy in a nomination occurs a nomination to fill the vacancy may be made in the manner provided in subdivisions 2, 3, and 4.”
Subd. 2 of this statute provides for partisan offices and is not applicable here.
Subd. 3 provides:
“If there is no proper committee to fill the vacancy as provided in subdivision 2, or if a vacancy occurs in a nonpartisan office, then the person receiving the next highest number of votes for the office at the primary election shall be the candidate for the office.”
This subdivision is not applicable here, where Judge Rogers was the only candidate for the nomination.
Subd. 4 provides:
“If there is no proper committee to fill the vacancy as provided in subdivision 2, or if there is no person who may be nominated under subdivision 3 and a vacancy exists by reason of this fact, the vacancy may be filled by the proper officer placing upon the ballot the name or names of candidates as are nominated by nominating petition in the manner provided in sections 202.09 to 202.12. Every voter is eligible to sign a petition choosing a nominee to fill the vacancy.”
With respect to nominations by nominating petitions referred to in § 202.14, subd. 4, the statutory provisions are as follows:
§ 202.09, subd. 1. “A petition for nomination of a candidate may be signed by electors resident within the district or political division from which the candidate is presented, as follows:
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“(b) If for a congressional or judicial district office, by five percent of the entire vote cast in the district at the last preceding general election, or 1,000, whichever is the lesser.”
Section 202.12 provides:
“After the signature of each signer there shall be written his post *366office address. Following the facts required to be stated in each petition signed by the voter shall be an oath in the following form: T solemnly swear (or affirm) that I know the contents and purpose of this petition, that I do not intend to vote at the primary election for the office for which this nominating petition is made, and that I signed the same of my own free will.’ No signature shall require notarization or certification before any officer, but each signer in so signing shall be guilty of perjury for making a false oath therein.”
Since here it is not disputed that under the foregoing statutes Judge Barbeau was nominated for the judicial position commencing January 7, 1963; and was likewise duly elected thereto at the general election on November 6, 1962, it is my opinion that at no time was there a vacancy in such position calling for a gubernatorial appointment under Minn. Const, art. 6, § 11.
2. This court appears to have arrived at a like conclusion in Enger v. Holm, 213 Minn. 154, 6 N. W. (2d) 101. The constitutional provision then in effect, Minn. Const, art. 6, § 10, was similar to the present art. 6, § 11, except that under its provisions appointees to judicial vacancies were required to be elected at the first annual election occurring “more than thirty days after the vacancy” rather than at the next general election occurring “more than one year after such appointment” as presently provided. There, Royal A. Stone held one of the positions of associate justice of the supreme court for the terra expiring January 4, 1943, and a like position was held by Andrew L. Holt. By virtue of the primary election held September 8, 1942, in which ten persons were candidates, Mr. Justice Stone and three others (Mr. Justice Holt was not a candidate) became nominees for the two judicial terms described. Five days after the primary election and prior to the general election, Mr. Justice Stone died. Shortly thereafter, Clifford E. Enger submitted a nominating petition to fill the vacancy in the nomination created by the death of Mr. Justice Stone, contending that his death had nullified all primary nominations for his position and eliminated the right of the fifth highest primary candidate therefor to be advanced as a nominee for one of the terms commencing January 4, 1943. Governor Harold E. Stassen then appointed Maynard E. *367Pirsig to fill the vacancy caused by the death of Mr. Justice Stone. In denying Enger’s contentions, this court stated (213 Minn. 156, 6 N. W. [2d] 102):
“A successor to Mr. Justice Stone would be elected at the forthcoming election in the regular course of things. If he had lived and would have been elected, he would have been his own successor. If the relator’s contention that the election of a successor can be held only under the provisions relating to filling vacancies is correct, the election of a successor in the regular course of things is not only prevented, but the election machinery which has been set in motion for that purpose is arrested.
* # ifc * #
“Here, a successor to fill the vacancy in question will be elected at the November election for the full constitutional term of six years. Whether a successor be elected in regular course or to fill a vacancy under § 10, the election is for the constitutional term. * * *
* * * * *
“We said in Flakne v. Erickson, 213 Minn. 146, 6 N. W. (2d) 40:
“ ‘So, we think it is clear that if and when the governor makes an interim appointment to fill the mentioned vacancy the appointee would hold the office until a successor is elected and has qualified, and that the one elected at the next general election cannot qualify except for the regular term beginning in January 1943.’
“It follows as a matter of course that the successor to Mr. Justice Stone is to be elected at the forthcoming election in November in the regular course. Under art. 7, § 9, the successor cannot qualify and take office until the first Monday in January 1943. The vacancy is filled by the appointment of Mr. Justice Maynard E. Pirsig, who is entitled to occupy the office until the first Monday in January 1943, the date on which the terms of the judges elected in November shall begin. Likewise, Mr. Justice Streissguth is entitled to fill the vacancy caused by Mr. Justice Holt’s resignation until the same time.”
The foregoing clearly indicates that, where a vacancy in a judicial office occurs after there have been nominations for the next term *368of such office, a gubernatorial appointment to fill such vacancy is an interim appointment only, and expires with the expiration of the regular term of the judicial office to which the appointment is made. Accordingly, it is my opinion that Judge Amdahl’s appointment would expire with the expiration of the regular term of the position, held by Judge Rogers at the time of his death; and that Judge Barbeau was duly nominated for and elected to the judicial position commencing January 7, 1963. See, People ex rel. Jackson v. Potter, 47 N. Y. 375; see, also, McDonnell v. State ex rel. Jones, 199 Ala. 240, 74 So. 349; Simpson v. Willard, 14 S. C. 191.
3. To me, this conclusion appears consistent with the intent of the people expressed in Minn. Const, art. 6, §§ 8 and 11, that judicial offices be filled by elective rather than appointive processes; and that the power of the chief executive to fill vacancies therein be limited to situations where elective processes are not available. State ex rel. La Jesse v. Meisinger, 258 Minn. 297, 103 N. W. (2d) 864; Enger v. Holm, supra; State ex rel. Baxter v. Brown, 22 Minn. 482. A contrary construction could well result in the nullification of such intent in many possible situations. Thereunder, if an incumbent judge were a candidate for election to the term succeeding that of his present position and were defeated therefor in the general election he could then resign to permit a gubernatorial appointment to fill the vacancy thus created and thereby completely nullify the will of the electorate. Or an incumbent judge might refrain from being a candidate for the term succeeding that of his position, and subsequent to the nomination of another qualified person therefor, resign so that by gubernatorial appointment to his vacated position the elective processes would be thwarted. Or situations might arise where incumbents by resignations at convenient times before election would thereby insure continued, if not perpetual, judicial service through appointive rather than elective procedures.
By reason of all of the foregoing, I am firmly convinced that the constitutional provision having reference to filling vacancies in judicial position by gubernatorial appointment (art. 6, § 11) has no application where there are candidates duly qualified and nominated for the *369succeeding term of such positions and a general election is available to finally determine whom the electorate selects therefor.