The respondent, by the attorney-general, has filed a petition for rehearing upon the grounds, stated in brief and in substance, that at the time of the passage of the legislative act of 1883 under which the relator claims his compensation as reporter of the decisions of the supreme court as ex officio clerk of said court, it was provided by section 32, article IV, of the constitution that "the legislature shall provide for the election by the people of a clerk of the supreme *Page 384 court," and the several county officers named in said section; that on the 11th day of February, 1887, said section was amended, and as amended provides: "The legislature shall have power to increase, diminish, consolidate or abolish the following county officers," naming them, "and the legislature shall provide for their election by the people"; that, at the time this amendment was adopted, the office of clerk of the supreme court, with all its' attendant duties, ceased to be a constitutional office, and, without legislative creation then or thereafter, ceased to exist as an office; that the legislature has not attempted to create the office of clerk of the supreme court, or ex officio clerk of the supreme court, since said amendment of the constitution in 1887; that there is not now any warrant or authority of law for the existence of any such office or officer under the constitution or laws of this state. And he adds: "Without an office there can be no officer to fill it, and it will not be seriously contended that there is any such office in this state to-day existing under the constitution, or created by legislative enactment, as the one which the relator claims to perform the duties of in his capacity of secretary of state and ex officio clerk of the supreme court, under which latter office he claims to be entitled to the compensation prayed for in his petition, and if there be no such office, there certainly cannot be any authority for payment to him of compensation for services in performance of the duties of an office which does not exist."
If the contention of the attorney-general be true that, since the adoption of the amendment of the 11th of February, 1887, we have had no constitutional office of clerk of the supreme court, and that since that time the legislature has failed to create a legislative office of clerk of the supreme court, or an office of exofficio clerk of the supreme court, and that no such office or officer has existed under the constitution or the laws since that date, then the people by the adoption of said amendment and the legislature by non-action have practically abolished the supreme court for the last ten years. For it is provided, in section 8, article XV, that "no judgment of the supreme court shall take effect and be operative until the opinion of the court in such case shall be filed with the clerk of said court." *Page 385
It will be observed that said original section 32 required the legislature to provide for the election of the clerk of the supreme court by the people, and that section 32, as amended in 1887, omits mention of said clerk, and it seems to be the theory of counsel for respondent that this omission had the effect of causing the office of clerk of the supreme court to cease to exist as a constitutional office.
The clerk of the supreme court was elected at the general election in 1864, with other state officers, under the provisions of section 18, article XVII, of the constitution, to hold his office till the first Tuesday after the first Monday of January, 1867, and until his successor was qualified. On March 9, 1866 (Gen. Stats. 459), the legislature provided for the election of all state and county officers at the general election thereafter to be held in November of that year and at subsequent general elections. In obedience to the requirements of said original section 32, article IV, of the constitution, the said act of 1866 provided: "Sec. 12. At the general election in the year eighteen hundred and sixty-six, and at the general election every four years thereafter, the clerk of the supreme court shall be chosen by the qualified electors of the state, and shall hold his office for the term of four years from the first Monday of January next after the election, and until his successor is qualified."
The fact that the provision of the original section 32 of article IV, concerning the clerk of the supreme court, was left out of said section as amended in 1887, in no manner affects the above provisions of the statute, and in no degree affects the constitutional character of the office of clerk of the supreme court. The legislature having fully complied with the terms of the original provisions of said section as to the clerk, by providing for his election at the general election in 1866, and at the general election every four years thereafter, there was no particular necessity for incorporating the omitted provisions in the amended section, and there would have been no great propriety in doing so. The constitution not only requires the opinions of the supreme court to be filed with its clerk before its judgments shall take effect or be operative, but requires the clerk of the supreme court to *Page 386 keep his office at the seat of government. (Secs. 8, 12, art. XV.)
We conclude that we still have an office of clerk of the supreme court, and that it is a constitutional office; that by-virtue of the statute (1893, 32) which provides: "The secretary of state shall be ex officio clerk of the supreme court," the secretary of state is ex officio such clerk, or is the clerk of the supreme court by virtue of his office of secretary of state.
The contention of counsel for the respondent being without merit, the petition for rehearing is denied. *Page 387