Opinion of the Court-Sullivan, C. J.

Oneida county, Idaho; that the said Conrad Kissler, under said contract, in performing plaintiff's part of said contract, used the plaintiff's said well-drill and appliances; that the plaintiff supplied all money for carrying out and executing said contract; that Conrad Kissler had no interest in said contract other than as the agent and attorney in fact of the plaintiff; that Moss, having failed to pay the contract price for the drilling of said well, a suit was commenced by the said Conrad Kissler in his own name in the district court of Oneida county to recover the amount due for drilling said well, which action resulted in a judgment in favor of the said Conrad Kissler and against Moss for the sum of $860.00 and $28.75 costs; that said action was prosecuted in the name of Conrad Kissler for the use and benefit of the plaintiff and that he holds said judgment in trust for the use and benefit of the plaintiff; that no part of said judgment has been paid, and plaintiff prays for judgment to the effect that she is the owner of said judgment and the defendant Conrad Kissler has no interest or title therein or thereto, and that she have judgment against Moss for said sum of $860 with interest from November 22, 1911, and costs.

Under the allegations of the complaint the trial court sustained the demurrer on the two grounds above mentioned. It is contended by counsel for the respondent that since the defendant Moss was not in any way interested in the outcome of this suit as to which one owned said judgment, Conrad Kissler or Mary Kissler, and that since the judgment had been obtained against him by the agent of Mary Kissler, and since said judgment had been duly rendered against the defendant Moss for the full amount claimed, the plaintiff had no right to another judgment against him for the same debt.

This contention appears reasonable since under the demurrer of the defendant Moss he admits all of the allegations of the complaint which are well plead, and one of those allegations is that Conrad Kissler, as agent of the plaintiff, the appellant here, obtained a judgment against Moss for the identical service for which the plaintiff is seeking to obtain a judgment in this case. Since the defendant Moss admits that

Opinion of the Court-Sullivan, C. J.

said judgment was a valid judgment, the only controversy now is between the plaintiff and the defendant Conrad Kissler as to whether he or she is the owner of said judgment, and whether he as her agent now holds the same in trust for her use and benefit. This controversy appears only from the allegations of the complaint, and under those allegations it does not appear that Moss is a necessary party.

It is a little remarkable that the appellant did not require her agent to transfer the judgment he held in trust for her to her, rather than bring this action seeking to get another judgment against Moss.

The trial court did not err in sustaining said demurrer and entering judgment dismissing the case, so far as Moss was concerned.

The defendant Conrad Kissler, since this case was appealed, filed in this court his written waiver of notice of appeal and states in said waiver, among other things, as follows: "that he has no interest in said appeal or the judgment appealed from adverse to appellant or at all." Under that state of facts the cause will be remanded to the trial court with instructions to enter judgment in favor of the appellant to the effect that she is the owner of said judgment against J. H. Moss for the sum of $860, with interest, and costs of suit taxed at $28.75, and that the defendant Conrad Kissler has no interest therein.

Costs of this appeal are awarded to the respondent.

Truitt, J., concurs.

Argument for Plaintiff.

(November 28, 1914.)

ALFRED BUDGE, Plaintiff, v. W. L. GIFFORD, as Secretary of State, Defendant.

[144 Pac. 333.]

MANDAMUS-JUSTICE OF SUPREME COURT-VACANCY IN OFFICE-BALLOTS -ELECTION TO FILL VACANCY-APPOINTMENT TO FILL-DUTY OF GOVERNOR-CONSTITUTIONAL CONSTRUCTION.

1. An election to fill a vacancy in the office of justice of the supreme court is not authorized under the constitution of this state, and no attempt at a special election to fill such vacancy by writing in the name of the office to be filled and the person to be voted for would be legal and valid.

2. Under the provisions of sec. 6, art. 4 of the state constitution, when a vacancy occurs in the office of justice of the supreme court, it becomes the duty of the governor to fill the same by appointment, and such appointee shall hold such office until the end of the term for which the original incumbent was elected.

3. Certain provisions of the constitution cited and commented on. 4. All provisions of the state constitution relating to a given subject must be construed together, and where certain provisions are definite and explicit, they must be given precedence over expressions which are merely of a general character.

5. Held, under the facts of this case the peremptory writ must issue.

Original application for writ of mandate to compel the Secretary of State to issue a commission for the appointment of Honorable Alfred Budge to fill the full term of vacancy caused by the death of Justice Stewart. Writ granted.

Cavanah, Blake & MacLane, Martin & Martin and Budge & Barnard, for Plaintiff.

Where a term of office is fixed by the constitution, the legislature has no power to change the length of the term. (29 Cyc. 1397; State v. Thoman, 10 Kan. 191; Commonwealth v. Sheatz, 228 Pa. St. 301, 77 Atl. 547, 21 Ann. Cas. 54, 50 L. R. A., N. S., 374.)

If a judge now takes his seat as successor to Justice Stewart the office is in no sense vacant either under sec. 317 Rev.

Argument for Defendant.

Codes or under the commonly accepted meaning of the term, at the general election of 1916; and if a successor may then be elected, it is because Judge Budge's term ends, and not because there is a vacancy in the term either of Justice Stewart or of Judge Budge. (Knight v. Trigg, 16 Ida. 256, 100 Pac. 1060; State v. Howe, 25 Ohio St. 588, 595, 18 Am. Rep. 321; Collins v. State, 8 Ind. 344; 8 Words & Ph. 7259; State v. Howell, 59 Wash. 492, 110 Pac. 386, 50 L. R. A., N. S., 336.)

The provision of sec. 320, that a vacancy in the supreme court "shall be filled by appointment by the governor until the next general election, etc., refers to the next general election at which the particular term of office in the supreme court is to be filled. (People v. Mathewson, 47 Cal. 442; People v. Budd, 114 Cal. 168, 45 Pac. 1060, 34 L. R. A. 46, People v. Col, 132 Cal. 334, 64 Pac. 447; State v. Smith, 35 Mont. 523, 90 Pac. 750, 10 Ann. Cas. 1138; State v. Collins, 2 Nev. 351; State v. Cobb, 2 Kan. 32; Matthews v. Board of Commissioners, 34 Kan. 606, 9 Pac. 765; Wainwright v. Fore, 22 Okl. 387, 97 Pac. 831; People v. Hardy, 8 Utah, 68, 29 Pac. 1118; State v. Gardner, 3 S. D. 553, 54 N. W. 606; People v. Wilson, 72 N. C. 157; State v. Philips, 30 Fla. 590, 11 So. 922; Ransdell v. Ariail, 13 La. Ann. 459; Smith v. Halfacre, 6 How. (Miss.) 582.)

It is to be observed, as held in Kenfield v. Irwin, 52 Cal. 164, cited and followed in State v. Howell, supra, that an election to fill a vacancy, though held at the same time as a general election, is a special election. The only elections to fill vacancies which the statute provides for are for vacancies in the office of members of the legislature and of members of Congress. (Secs. 325, 326.) By sec. 331, an appointee as well as one elected to fill a vacancy possesses "all the rights and power" of the officer whose vacancy he fills. (Sheen v. Hughes, 4 Ariz. 337, 40 Pac. 679.)

J. H. Peterson, Atty. Genl., J. J. Guheen, T. C. Coffin and E. G. Davis, Assistants, for Defendant.

No valid election could be held in this state under the circumstances of writing in a few names on the ballot such as

Argument for Defendant.

was done at the last general election in an attempt to thereby elect a member of this court. (People v. Porter, 6 Cal. 26; People v. Kerwin, 10 Colo. App. 472, 51 Pac. 531; Beal v. Morton, 18 Ind. 346; Wood v. Barthing, 16 Kan. 109; Cook v. Mock, 40 Kan. 472, 20 Pac. 259; Wilson v. Brown, 109 Ky. 229, 139 Ky. 397, 58 S. W. 595; Commonwealth v. Smith, 132 Mass. 289; Secord v. Foutch, 44 Mich. 89, 6 N. W. 110; Adsit v. Board of Canvassers, 84 Mich. 420, 48 N. W. 31, 11 L. R. A. 534; State ex rel. Bates v. Thayer, 31 Neb. 82, 47 N. W. 704; State ex rel. Bolton v. Good, 41 N. J. 296; People ex rel. Davies v. Cowles, 13 N. Y. 350; People ex rel. McKune v. Weller, 11 Cal. 49, 70 Am. Dec. 754; Foster v. Scarff, 15 Ohio St. 532; In re Contested Election of Lawlor, 180 Pa. St. 566, 37 Atl. 92; State ex rel. Sampson v. Superior Court, 71 Wash. 484, Ann. Cas. 1914C, 591, 128 Pac. 1054; State ex rel. Peacock v. Orvis, 20 Wis. 235; State ex rel. Chase v. McKinney, 25 Wis. 416.)

People v. Budd, 114 Cal. 168, 45 Pac. 1060, 34 L. R. A. 46, is a case upon which considerable reliance seems to be placed by the plaintiff in this action. A careful reading of that case will show, however, that instead of being a case in favor of his contention, it is one against it. (See, also, People v. Babcock, 123 Cal. 307, 55 Pac. 1017; People, etc. v. Col, 132 Cal. 334, 64 Pac. 477.)

In the case of Rice v. Stevens, 25 Kan. 302, the court lays down the proposition that "the theory of our law is that officers shall be elected whenever it can be conveniently done, and that appointments to office will be tolerated only in exceptional cases."

In State v. Mechem, 31 Kan. 435, 2 Pac. 816, the court construes certain sections of the compiled laws of that state, and sets out at length, two sections of such laws, one of which is identical with sec. 320 of our code, and the other is practically word for word with sec. 329. These compiled laws of Kansas were enacted in 1879, and it is a reasonable assumption that sec. 329, which appears to have been first enacted in 1899, was copied bodily from the compiled laws of Kansas of 1879. In the latter case, construing the section of the