| Idaho | Jan 29, 1897
This is an original action, commenced by the plaintiff in this court, to obtain a writ of mandate requiring the defendants to admit the plaintiff to the use and enjoyment of the office of “county superintendent of public instruction in and for Ada county/’ From the petition the following facts appear: Plaintiff was, at the general election in 1896, elected to the office of “probate judge and ex-officio county superintendent of public instruction” in and for said Ada county. Plaintiff, on January 11, 1897, the time appointed by law, qualified as said probate judge, and filed a good and sufficient bond as ex-officio county
This action involves the question of time at which the amendment to the sixth section of article 18 of the constitution, proposer! by the legislature, and ratified by the people at the general election of 1896, goes into full operation and effect. We presume that the defendants, as said board of county commissioners, took the view that said amendment is self-executing, and in full effect on the eleventh day of January, when they, by their chairman, refused to administer said official oath to plaintiff. Was that conclusion correct? Said amendment, and the object of it, is to separate the officers of probate judge and county superintendent, and is a copy of the original section only in this: The original section made it the duty of the legislature to provide for the election biennially of a “probate judge who is ex-officio county superintendent of public instruction” for each county, while the amendment requires the legislature “to provide” by “general and uniform laws for the election biennially in each of the several counties of the state,” of the several county officers therein named, among which is the office of “county superintendent of public instruction.” The election of plaintiff to the combined office of probate judge and ex-officio county superintendent of public instruction in and for Ada county, and the ratification of said amendment to the constitution, were simultaneous acts. If the amendment went into immediate effect, when the state canvassing board found that a majority of the votes east for or against the adoption of the amendment were cast in favor of its adoption, then it necessarily results that the plaintiff is not entitled to the relief sought; but, on the other hand, if said amendment is not in operation, he is entitled to such relief. The amendment does not in express terms, nor, as we view it, by necessary implication, provide that it shall go
The views herein set forth are fully sustained by the decision of this court in the case of Hays v. Hays, ante, p. 154 (decided at the present term), 47 P. 732" court="Idaho" date_filed="1897-01-28" href="https://app.midpage.ai/document/hays-v-hays-5168314?utm_source=webapp" opinion_id="5168314">47 Pac. 732, and by the authorities cited in that decision. The amendment in question makes it the duty of the legislature to provide for the election of county superintendents of public instruction, but does not authorize the legislature to provide for the appointment of such officers. The old order of things will continue until the machinery for carrying the amendment in question into effect, according to the letter and spirit of said amendment, shall have been provided. The probate judges elected in the several counties of the state at the last election were entitled to qualify as “ex-officio county superintendents of public instruction” in their several counties. It is the duty of the defendant board to administer the proper oath to admit the plaintiff to the office, ex officio, of county superintendent of public instruction in and for Ada county, and the plaintiff is entitled to the office of county superintendent of public instruction in and for Ada county, and to exercise the powers and enjoy the emoluments thereof, for the full term for which he was elected. The plaintiff is entitled to a peremptory writ, as demanded in his said petition, and it is ordered that said writ issue.