The opinion
FOSTER, Justice
(dissenting).
The act of 1933 merely enlarged the board by adding two members to the five as then constituted. The provision that five of them should be persons out of and from the board as constituted of course assumes that at the time the five offices on the board were filled. The effect was to carry the board as then constituted into and form that much of the new. If one of those offices was vacant, it went into the new board as a vacancy, subject to toe filled as such, for which provision was made by the act.
Viewing it on another theory, if the new act created a new office, at once effective, but named as its first incumbent one who is dead, or named as. the qualifications of the one who shall be its first incumbent such as were possessed only by one who was then dead, should not, in my opinion, have the effect of annulling the act altogether. It is only the first incumbent whose qualification* are thus prescribed, and I think that sueli situation is the same as the creation of a new office with no provision for filling it. When such situation exists, the best rule, I think, is that there is at once a vacancy to be filled pursuant to the law which regulates the method of filling vacancies generally speaking. 46 Corpus Juris, 973 (118), 976 (notes 92 and 93).
I cannot therefore concur in the majority opinion.
GARDNER, J., concurs in the foregoing.