particular in conflict with section 10 of the schedule of the state constitution: State v. Telbord, 1 Nev. 240; State, ex rel v. Ransom, 70 Mo. 78; State v. McGovney, 92 Mo. 428.
L. W. Gammons, with whom were Austin & Harper, for respondent, cited: 9 How. 242; 44 N. W. 726; 11 Wend. 132; 12 Cal. 378; 5 Kan. 426; 6 Cow. 643; 9 id. 640; 2 Denio, 281; 11 Wend. 151; Broom, Legal Maxims, 414. An elective office which has never been filled cannot be vacant:” 91 N. Y. 634; 7 Pac. Rep. 261.
Corliss, C. J. A peremptory writ of mandamus having been awarded the relator in the trial court, defendants bring the case before this court by appeal. Relator was county assessor of Ransom county at the time of the adoption of the constitution of this state. His term of office as fixed by the territorial laws would not expire until January, 1891. On the 18th day of April, 1890, the board of county commissioners of Ransom county, claiming to act under the provisions of § 30, of the revenue law, approved March 11, 1890, appointed district assessors for each of the five commissioner districts of that county; and these appointees were about to enter upon the duties of their office when these proceedings were institued to compel the county auditor and board of county commissioners to furnish relator the necessary books, blanks, etc., to make aesessment of property in the county, they having refused to so supply him on proper demand. They seem to justify their refusal on the ground that by the revenue law the office of county assessor was abolished, and that, since the appointment by the board of an assessessor for each of the commissioner districts of the county, these assessors are the only officers having any authority under the law to make the assessment that was formerly made by the county assessor. Relator first claims that the revenue law did not contemplate the appointment of any assessor under its provisions before the expiration of his term of office. But was there any such office left to fill after the enactment of this statute? Section 30 of that act provides for the office of district assessor. All counties and parts of counties, not organized into civil townships, are to be divided into assessor districts, which
