That case did not involve the precise question here discussed, and we do not believe that in a case of this kind that court would give to the language used in that case a literal construction. We do not believe that that court would feel itself bound in a case involving the question here discussed by the language used in the above case. After a careful examination of the question embraced in your communication, I am of the opinion that, for the reasons given, the bill, if passed, would not be constitutional. I am not unmindful of the fact that there exists a difference of opinion upon this question among many of the able lawyers of this state, and I am frank to say it is a question of construction purely, and one upon which little direct authority will be found, and is, therefore, a question not entirely free from doubt. For many centuries a jury has been regarded as the great bulwark of the people's liberties. Not only the people themselves, but the courts have jealously guarded any encroachment upon this right. I am not, however, insensible to the growing sentiment manifested within the past few years in favor of allowing a verdict by a divided jury. This sentiment has found expression in constitutional provisions in some of the Western states, but I am not prepared to believe that this sentiment will so affect the minds of the courts or so influence their judgment as to induce a departure by judicial interpretation from a time-honored institution. In view of the importance of this question, you will pardon my suggestion at this time, that it might be advisable to submit this matter to the Supreme Court for a determination, in the event that the bill shall progress far enough to indicate a probability of its final passage. The term "civil case" does not embrace every case which is not classed as a criminal case; not every case which is not a criminal case is a civil one. A "civil case" had a certain meaning at the common law, and the term is ordinarily used in state Constitutions in the common law sense. Railroad Company vs. Heath, 9 Ind., 558. The inquiry contained in your communication deals with a jury in civil cases only; I therefore express no opinion as to whether or not the right of trial by jury is preserved in those cases which are neither civil nor criminal. Section 15 of Article II, of the Constitution of Colorado, provides for "a jury" in condemnation proceedings. For the reasons above stated I express no opinion at this time as to whether or not the words, "a jury," as used in the above section, were used with reference to their common law meaning requiring a jury of twelve and a unanimous verdict. McManus vs. McDonough, 107 Ill., 95, 103. (Dissenting opinion.) Bibel vs. People, 67 Ill., 172. Respectfully submitted, D. M. CAMPBELL, Attorney General. By CALVIN E. REED, Assistant. TO HON. ED. T. TAYLOR, Chairman of the Senate Judiciary Committee, Capitol Building. [Note. The matter of the constitutionality of Senate Bill No. 142, was submitted by legislative question, to the Supreme Court of Colorado for decision, but that court declined to answer the question, upon the ground that its answer would require a review of the case of Houston v. Wadsworth, 5 Colo., 213, a former decision of that court. In Re. Senate Bill No. 142, To Regulate Jury Trials The above bill was subsequently passed by the legislature. On June 25, 1900, the Supreme Court of Wyoming, in the case of First National Bank of Rock Springs v. Foster, 61 Pac., 466, held that the statute of Wyoming, providing for a verdict by a divided jury, from which said Senate Bill No. 142 was copied, was unconstitutional and void.] IN RE COUNTY COMMISSIONERS. The death of a person elected to the office of county commissioner before qualifying in his office, does not create a vacancy which can be filled by appointment. State of Colorado, Attorney General's Office. Denver, Colorado, February 3, 1899. Sir-I am in receipt of your official communication, under date of January 26, 1899, in which you advise me that you have been officially notified that one L. Hutchins was elected to the office of county commissioner for the third commissioners' district in Kit Carson County, Colorado, at the last general election, and that the said Hutchins died before qualifying in said office. Your official communication, after citing certain constitutional and statutory provisions relating to the subject, requests my official opinion upon four questions therein stated, and concludes with the following request: "Please state in conclusion whether in your opinion a vacancy exists which should be filled by executive appointment, or whether the old incumbent holds over until his successor is elected and qualified?” * * * The Constitution of this state provides that, "In each county there shall be elected for the term of three years three county commissioners, One of said commissioners shall be elected on the first Tuesday in October, eighteen hundred and seventy-six, and every year thereafter one such officer shall be elected in each county, at the general election, for the term of three years." Section 6, Article XIV. The statutes of this state provide for the election in each county of one county commissioner annually, who "shall continue in office three years," and "whose term of office shall be three years.' 1 M. A. S., Sections 782 and 1579. The statutes of this state also provide that in case of a vacancy occurring in the office of county commissioner, the Governor shall fill the same by appointment, and the person appointed shall hold his office until the next general election. 1 M. A. S., Sections 790 and 1580. The Constitution of this state provides that, "In case of a vacancy occurring in the office of county commissioner, the governor shall fill the same by appointment; and in case of a vacancy in any other county office," etc. Section 9, Article XIV. The above sections of the Constitution and statutes recognize the office of county commissioner as a county office. The Constitution of this state contains the following provision: "Every person holding any civil office under the state, or any municipality therein, shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified; * Section 1, Article XII. Answering your first interrogatory, I may say that it has been determined by the Supreme Court of this state that the last above quoted section of the Constitution applies to the office of county commissioner. People ex rel. Williams vs. Reid, 11 Colo., 138, 140. It is further provided by statute that, * or other "When the term of office of any sheriff, * county officers shall expire, as now provided by law, it shall be lawful for such officer, whether re-elected or not, and his deputies, to continue to perform all the duties of such office until his successor shall be duly qualified as required by law." 1 M. A. S., Section 920. The statutes of this state provide that every county office shall become vacant upon the happening of certain events enumerated therein. 1 M. A. S., Section 924. Answering your second, third and fourth interrogatories, I will say that in my opinion the above section of the statutes has no application to the facts of the case now under consideration; the sixth subdivision of said section does not apply to this case, and for this reason it is unnecessary to determine whether or not said section is in harmony with Section 1 of Article XII of the Constitution, above quoted. The law, in common with the average officeholder, abhors a vacancy in a public office. For this reason, to prevent the interruption of public business and to decrease the executive patronage of appointments, the |