I concur in the order.
8. It is true, as contended, that a county commissioner is a constitutional officer and that he cannot be deprived of his office by an act of the legislature passed for that purpose; but when the legislature enacts a law which it is empowered to enact and it incidentally happens as one of the results of such legislation that a constitutional officer ceases to be a resident of the county for which he was elected, the act is nevertheless valid.
9. The legislature has the power to change the boundaries of a county. Pershing County v. Sixth Judicial Dist. Court in and for Humboldt County, 43 Nev. 78, 181 P. 960, 183 P. 314.
When it exercised this constitutional authority the petitioner ceased to be a resident of Mineral County and hence was no longer a commissioner of the county. This point was squarely determined in Conner v. Gray, 88 Miss. 489, 41 So. 186, 189, 9 Ann. Cas. 120, wherein the court said: "It is charged in the bill that the officers named will be deprived of some constitutional rights which they have to hold office. * * * The Constitution of the state stands as a whole, and all its provisions are to be construed together as one entirety. That section of the Constitution which provides for the creation *Page 55 of new counties is a particular power granted to the Legislature, more far-reaching and greater in its effect upon the body politic than those provisions of the Constitution which provide for the districting of the county into beats and districts and providing for the terms of officers, and its exercise by the Legislature contains a necessary implication against anything contrary to it. The Legislature cannot legislate out of office any constitutional officer, where the purpose of the act is to accomplish this alone; but where the power is given to the Legislature by the Constitution to legislate upon any specific subject-matter, and in strict conformity to the power they do legislate, and it has the incidental effect of abolishing certain office holders holding office under the general provisions of the Constitution, those officers will be presumed to have been elected and to have accepted their offices in subservience to the power which existed in the Legislature, by the exercise of its constitutional power, to dispense with the office holders as the incidental effect of the passage of the act creating the new county."
The case of State of Ohio ex rel. Ives v. Choate,11 Ohio, 511, is squarely in point. Choate was elected associate judge of Huron County, entered upon the duties of the office, and ever since had resided in the town of Milan. By act of the general assembly Milan was, after Choate's election and qualification, attached to Erie County, after which Ives was elected associate judge of Huron County and qualified as such. Choate persisting in holding the office, Ives instituted proceedings in quo warranto.
The court in disposing of the case said:
"The constitution of this state authorizes the general assembly to create new counties and to change or alter the boundaries of old ones. * * *
"What, then, is the effect of the commission which was granted to defendant, Choate? Did it authorize him to claim the office of judge for Huron county after his political connection with that community had ceased? Could he act as a conservator of the peace therein? The *Page 56 constitution is mandatory, `He shall reside therein.' No one could contend that a voluntary removal was not a forfeiture and resignation of his office. Indeed the legislature of this state have, by express enactment, declared that it shall be so held. Can it make any difference when this removal is effected by the exercise of a constitutional right of the general assembly and by an act of omission in the officer? It seems to us it can not."
To the same effect, see People v. Morrell, 21 Wend. (N.Y.) 563.
10. It is clear that the act is not violative of section 5, art. 6, of the constitution, prohibiting the change of the boundaries of a judicial district during the term of an incumbent. It is clear that the legislature is prohibited from changing the boundaries of a district only to the extent of increasing or diminishing such district in so far as county organizations are concerned.
11. The governor had authority to fill the vacancy mentioned, pursuant to section 1935 N.C.L., notwithstanding section 4813 N.C.L., as amended by chapter 127, Stats. 1933, authorizing the board of county commissioners to fill vacancies in county offices. The board of county commissioners of the various counties of the state consists of three members, and in case of a vacancy it can readily be seen that it would often happen that difficulty would arise in filling such vacancy by the two remaining members, hence the legislature enacted section 1935 N.C.L., authorizing the governor to fill such a vacancy. If it be claimed that the last-named section be a special statute, we may say that special statutes are interdicted in only special cases by section 20, art. 4, of the constitution; furthermore, we are not convinced that it is special in character. State of Nevada v. California Min. Co., 15 Nev. 234. *Page 57