Opinion of the Court-Sullivan, C. J.

provide for the following courts and judges: State senate as a court of impeachment; justices of the supreme court; district judges; probate judges; justices of peace and municipal judges.

Under the provisions of sec. 19 of said art. 5, it is provided that vacancies in any of said offices must be filled as provided by law and if that were the only provision of the constitution with reference to vacancies, the contention of the defendant as to the plenary power of the legislature in filling such vacancies would be correct. But in determining this question we must take into consideration a part of sec. 6 of art. 4 of the constitution which relates to the filling of vacancies, and is as follows:

"If the office of a justice of the supreme court or district court, Secretary of State, state auditor, state treasurer, attorney general, or superintendent of public instruction, shall be vacated by death, resignation or otherwise, it shall be the duty of the governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified in such manner as may be provided by law."

Under that provision of the constitution, whenever a vacancy occurs in the office of the justice of the supreme court, it becomes the duty of the governor to fill the same by appointment. This is an absolute grant of appointive power to the governor by the constitution itself and does not depend upon legislative action or legislative sanction. That power given the governor is not limited or controlled in any manner by the provisions of said section 19 of art. 5. If that were so, the legislature might provide that when a vacancy occurs in the office of a justice of the supreme court, or any other office named in said section 6, such vacancy should be filled by special election or by the legislature or in any other manner than by appointment by the governor, and thus deprive him of that power, the exercise of which is not merely permitted but is made mandatory by the provisions of said section. The language there used with reference to the vacancy is that Idaho, Vol. 26-84

Opinion of the Court-Sullivan, C. J.

the governor "shall fill the same by appointment" and with reference to the appointee, that he "shall hold his office until his successor shall be elected and qualified in such manner as may be provided by law."

After the vacancy has once been filled, there is no vacancy to be filled. The vacancy caused by the death of Justice Stewart extended from September 25, 1914, the date of his death, until the first Monday in January, 1919, or until a successor should be duly elected and qualified, a little over four years, and the governor is authorized to fill that vacancy, and at the end of the term to which the deceased incumbent was elected the successor of such appointee shall be elected and qualified in such manner as may be provided by law. Since the governor is empowered to fill such vacancy-not a part of it-the appointee holds the office until the term of vacancy expires, or until his successor is elected and qualified as provided by law. The words "his office" and "his successor" clearly indicate that the appointee succeeds to all the rights in the office held by the original incumbent and that he shall continue to hold and exercise them until the time arrives for the election of his successor in the manner provided by law, for the next suceeding term of the office in question.

In view of these considerations, it must be held that said sec. 19 has no application whatever to a vacancy in the office of the supreme or district courts, but that it relates wholly to vacancies in other offices provided for by art. 5, the filling of which is not otherwise provided for by the constitution.

It is a well-recognized rule of construction that all provisions of a statute or constitution relating to a given subject must be construed together. It is also a well-recognized rule of construction that expressions which are perfectly definite and explicit in their character must be given precedence in any case over those expressions which are of a general character only; and construing said section 19 with said section 6 of article 4, the indefinite provisions of the former must be governed and controlled by the specific and definite provisions of the latter. In the light of these well recognized rules of

Opinion of the Court-Sullivan, C. J.

construction, said sec. 19 must be understood and interpreted as though it read as follows: All vacancies occurring in the offices provided for in this article of the constitution shall be filled as provided by law "unless otherwise provided for in this constitution." The appointment to fill a vacancy in the office of supreme justice being otherwise provided for in the constitution, and such appointment being vested solely in the governor, it must be held that sec. 19 has no application whatever to such vacancy and that the legislature is given no power whatever by the constitution to deprive the governor of the right of such appointment. The absolute grant of that right to the governor is prohibitive on the legislature to attempt to limit or restrict the full exercise thereof.

Having reached that conclusion, it follows that the provisions of secs. 320 and 329 of the Revised Codes, in so far as those sections attempt to provide a manner of filling a vacancy in the office of the justice of the supreme court to hold only until the next general election, are necessarily repugnant to the constitution and in derogation of the specific power of appointment to fill vacancies in that office granted by the constitution to the governor, unless the term "next general election" be construed to mean until the next general election to fill the particular office in question.

Many authorities have been cited where it has been held that the terms "general election" and "regular election" mean the next general or regular election for the filling of the office referred to, and the provisions of sec. 324, Rev. Codes, with reference to the filling of vacancies occurring thirty days prior to the general election, in so far at least as the issues of this particular case are concerned, may be held to apply only to elections at the end of the term when the particular office would ordinarily be filled. However, under our view of the constitutional provisions cited, and having held that the governor is authorized thereby to fill such vacancies for the entire unexpired term of the office vacated, it is not necessary to further pass upon or construe the sections of the statute above referred to.

Points Decided.

The peremptory writ must therefore issue requiring the Secretary of State to issue a commission to the Honorable Alfred Budge, as prayed for in his petition, for the full term of the vacancy occasioned by the death of Justice Stewart.

Truitt, J., concurs.

(December 1, 1914.)

L. H. CAUTHORN, Trustee of the Estate of A. C. DUNNING and GUY OLIN, Partners Doing Business Under the Firm Name and Style of "THE TOGGERY," in Bankruptcy, Appellant, v. BURLEY STATE BANK, a Corporation, Respondent.

[144 Pac. 1108.]

BANKRUPTCY-CHATTEL MORTGAGE-PREFERENCE-CAUSE OF ACTION— REASONABLE CAUSE TO BELIEVE TRANSFER WILL EFFECT PREFERENCE -PLEADING.

1. In an action by a trustee in bankruptcy to set aside a transfer, on the ground that it effects a preference, and also that it is voidable as a fraud upon other creditors, under subdivision "e” of sec. 67 of the present bankruptcy law; the question as to a preference is determined from the facts and circumstances, and unless these are such as to produce a reasonable cause of belief in the mind of the person receiving the transfer that its enforcement would effect a preference, the transaction must be held valid. On the question as to whether a certain transfer is void because it is a fraud upon other creditors, the question must be determined by the evidence in each case.

2. Held, a chattel mortgage on a stock of goods which provides that the mortgagors may retain possession of the goods, sell them in the usual course of business, and each week pay a certain per cent of the gross proceeds of sales on the mortgage debt, is not void per se, but the question of its validity must be determined by the good faith or lack of good faith of the parties to the transaction.

APPEAL from the District Court of the Fourth Judicial District for Cassia County. Hon. Edward A. Walters, Judge.

Argument for Appellant.

Action by a trustee in bankruptcy to have a certain chattel mortgage declared illegal and void, and to have the mortgaged property turned over to the bankrupt's estate. Judgment for defendant. Plaintiff appeals. Judgment affirmed.

W. E. Abraham and James H. Wise, for Appellant.

"It does not now depend upon the purpose of intention of the debtor or creditor. It is implied that the debtor intended. the transfer to be a preference at the time it was made." (In re Andrews, 144 Fed. 922, 75 C. C. A. 562; In re First National Bank, 155 Fed. 100, 84 C. C. A. 16; Kimmerle v. Farr, 189 Fed. 295, 111 C. C. A. 27.)

"The trustee need not prove knowledge or belief, only reasonable cause to believe that a preference was intended.' (Lampkin v. People's National Bank, 98 Mo. App. 239, 71 S. W. 715.)

"This phrase includes reasonable cause to believe that the debtor is insolvent, for this is one of the elements of preference." (Thomas v. Adelman, 136 Fed. 973; In re Kullberg, 176 Fed. 585.)

"A person is always presumed to intend what is the necessary consequence of his act." (Western Tie & Timber Co. v. Brown, 196 U. S. 502, 25 Sup. Ct. 39, 49 L. ed. 571; English v. Ross, 140 Fed. 630; Wilson v. Nelson, 183 U. S. 191, 22 Sup. Ct. 74, 46 L. ed. 147; Forbes v. Howe, 102 Mass. 427, 3 Am. Rep. 475.)

"Whatever fairly puts a party upon inquiry is sufficient notice where the means of knowledge are at hand, and if the party under such circumstances omits to inquire and proceeds to receive the transfer or conveyance, he does so at his peril, as he is chargeable of knowledge and of all the facts, which by a proper inquiry he might have ascertained." (Crittendon v. Barton, 59 App. Div. 555, 69 N. Y. Supp. 559, 5 Am. Bankr. Rep. 775; Wager v. Hall, 16 Wall. (U. S.) 584, 21 L. ed. 504; Hackney v. Hargreaves Bros., 68 Neb. 624, 94 N. W. 822, 99 N. W. 675; Andrews v. Kellogg, 41 Colo. 35, 92 Pac. 222; Walker v. Tenison Bros. Saddlery Co. (Tex. Civ. App.), 94