people,' it will hardly be contended that the same mode of election was not contemplated in both cases, and that for the reason that the ordinary meaning of the word 'elected' implies a popular vote, unless otherwise qualified. When, then, the legislature is prohibited from passing local or special laws, regulating the election of county and township officers, the prohibition runs against making distinctions between counties or township, in the matters of the popular election of their officers."

It is plain, from sections 21 and 22, that the method contemplated of filling county and township officers is by an election under a general law.

And section 13, of article 17, provides that, "all county officers, under the laws of the territory of Nevada, at the time when this constitution shall take effect, whose offices are not inconsistent with the provisions of this constitution, shall continue in office until the first Monday of January, 1867, and until their successors are elected and qualified. And all township officers shall continue in office until the expiration of their term of office, and until their successors are elected and qualified." * *

*

But it is urged by counsel for respondents that section 10, of article 15, justifies the action of the legislature in extending the terms of assessors.

That section is as follows:

"All officers whose election, or appointment, is not otherwise provided for, shall be chosen, or appointed, as may be provided by law."

It is said that the only way to harmonize sections 10 and 32, is to hold that the officers, specifically named in the constitution, and known as constitutional officers, shall be elected by the people, and officers not so named, created by the legislature, known as legislative officers, shall be chosen as the legislature may direct.

Such construction utterly disregards the words, "and other necessary officers," in section 32, and is inconsistent with the evident intention of the framers of the constitution.

It convicts that body of inserting, in a most important instrument, words of sweeping import, which they did not intend to have construed according to their usual signification.

Section 10, of article 15, in no manner conflicts with section 32. It does not refer to state, county or township officers, whose election, by the people, is otherwise provided for in the constitution. Our opinion is, that the office of county assessor is elective, and that so long as it exists as a necessary office, its permanent incumbents must be elected by the people.

It is claimed, however, that although it is right of the legislature to extend the term of nized in three cases, decided in this court, Nev., 111; Rosenstock v. Swift, 11 Nev., 128; Nev., 28.

an elective office, the office has been recogviz.: Clark v. Irwin, 5 Denver v. Hobart, 10

We are unable to find anything in either case mentioned, that is opposed to our conclusions in this.

We don't deny that the legislature may make provisional appointments, if necessary, in order to put a new system in operation.

Offices that must be permanently filled by election, in cases of emergency, may be provided for, temporarily, by other means. The constitutional mandate does not apply to such exceptional cases: Clarke v. Irwin, supru; People v. Fisher, 24 Wend., 129.

Clarke v. Irwin shows that certain parties were named as county officers in the bill, creating the county of White Pine, to hold until the next general election. Irwin was designated as sheriff.

The court held that the statute did not violate that part of the constitution which requires county officers to be elected by the people, because the office was filled only temporarily by the legislature, until the next general election, and that the constitutional mandate did not apply to cases of emergency or special occasion.

Such is the undoubted law, but it does not apply to the statute under consideration.

In this case there was no emergency or special occasion calling for extraordinary action on the part of the legislature.

The several incumbents of the office had been elected for two years, under a general law, which required their successors to be elected by the people at the next general election in 1884.

Before the expiration of the term for which they were elected, there would be a general election, at which their successors could be elected in the manner and form provided by the constitution.

If it was desirable to change their terms of office from two to four years, still there is nothing to hinder the election of their successors at the general election in 1884.

Nor does Rosenstock v. Swift militate against our views.

The case shows that the act of the legislature, incorporating Carson City, made certain county officers of Ormsby county ex-officio city officers.

Among others the sheriff was constituted ex-officio city marshal.

It was claimed that the act was unconstitutional because it conferred city offices upon county officers, and thus permanently deprived the citizens of the state, residing within the municipal subdivision, of a fundamental right-the right of local self-govern

ment.

The court said: "The existence of a fundamental right of municipal local self-government is necessarily dependent upon some constitutional grant or manifest implication, neither of which can be found in the constitution of this state. Hence, a municipal corporation, in this state, is but the creature of the legislature, and derives all its powers, rights and franchises from legislative enactment or statutory implication.

Its officers or agents, who administer its affairs, are created by the legislature and chosen or appointed by the law of its creation."

Now, whether the court was wright or wrong in its conclusion that there was no constitutional inhibition against legislative appointments of municipal officers, matters not in this case. Its decision upon the objection urged was based upon such conclusion and it is not authority against relator in this case.

On the contrary, that case shows that, if the court had found the constitutional inhibition against legislative appointments to municipal offices that we have found against the legislative action under consideration, the decision would have accorded with ours.

Denver v. Hobart is so plainly inapplicable we shall not review it.

At the argument of this case we were referred to Christy v. Board of Supervisors, 39 Cal., 11, and People v. Batchelor, 22 N. Y., 135, in support of the doctrine that when an elective office has once been filled by an election, the legislature may extend the term of the incumbent, provided the whole term when extended does not exceed the time limited by the constitution.

The prevailing opinion in People v. Batchelor is rejected by the court of appeals in People v. Bull, 46 N. Y., 59, and People v. McKinney, 52 N. Y., 376.

We shall not stop to review these several decisions.

In Christy's case, as well as Batchelor's, it was held that the term could be extended by the legislature under the power to fix the duration of the term.

In the cases subsequently decided in New York it was held that an extension by the legislature was in substance an appointment to the office for the extended term, and a usurpation by that body of the right to fill the office, which was secured by the constitution to the electors.

We have examined these decisions with great care, and do not hesitate to adopt the reasoning and conclusions of the later New York cases, nor can we add anything to them.

To our minds it is enough to say that, since the constitution gives to the people of a county the right to elect their assessor, and they do elect him for two years, under the existing law, they have the right also to elect his successor, and if the legislature extends his term, their rights are abridged.

Should we hold that the term could be extended, we should have to admit that the incumbents would hold the office during the period of extension, by virtue of a legislative act, rather than by an election. The present assessors have been elected for two years. Should they hold their offices for four, they would have to point to the statute as evidence of their title to the office, instead of their certificates of election.

Our opinion is that section 2 of the statute under consideration, extending the terms of county assessors beyond the time for which they were elected, is unconstitutional and void.

Section 1 provides for an election in 1886, and every four years thereafter, but it does not supersede the existing law during the

next two years. It was not intended to go into effect during that time. It follows that county assessors must be elected at the ensuing general election, under the statute of 1866, for the two years succeeding the terms of the present incumbents.

The writ of mandamus should issue, as prayed for, and it is so ordered.

SUPREME COURT OF NEW MEXICO.

SPEIGELBERG ET AL. v. HERSCH & Co. ET AL.

Filed September 27, 1884.

MORTGAGE OF PERSONAL PROPERTY-POSSESSION BY MORTGAGOR-FRAUD. A mortgage of the stock in trade of a merchant, by the terms of which the mortgagor is to remain in possession of the goods, to sell and dispose of the same as the owner, and remit the proceeds of the sales to the mortgagee, is a fraudulent transfer as against other creditors of the mortgagor.

APPEAL from a judgment of the district court. The opinion states the facts.

Breeden & Waldo, for the appellants.

Gildersleeve & Knaebel, for the appellees.

AXTELL, C. J. The issue in this case was the truth of an affidavit for attachment.

The affidavit charges that defendants had fraudulently concealed and disposed of their property with intent to hinder, delay and defraud their creditors. The facts proved are substantially as follows: Defendants were merchants in Santa Fe, engaged in a general retail trade; they were indebted to plaintiff in the sum of about one thousand dollars; that defendant L. Hersch, at Santa Fe, made his promissory note to his brother-in-law, Sigmund Praeger, of New York, for the sum of about six thousand dollars; that to secure payment of this note he executed to said Praeger a chattel mortgage upon his stock of goods in his store at Santa Fe, said mortgage covering nearly his entire stock; that it was understood and agreed between Hersch and Praeger that Hersch was to remain in possession of said goods and carry on the business exactly the same as before the mort gage was given; and in fact he did so remain and so conducted the business. There are some other circumstances in proof which might slightly vary, or shade the above statement of facts, but it is believed that there is enough stated to bring out clearly the point made by plaintiff in favor of sustaining the attachment. Plaintiff asked the court to instruct the jury as follows: In law, no one can mortgage a stock of goods and yet remain in possession and carry on the business in the usual way, without paying all the proceeds on the account of the mortgage debt; if there be other creditors, such mortgage is a fraudulent transfer as to creditors; and if the jury

believe from the evidence that such was the facts in this case, they must find for the plaintiff. The effect of this instruction was to take the case from the jury, by instructing them that such a mortgage was a fraud in law as to other creditors. The court refused to give the instructions. The jury found for defendant, and against the truth of the affidavit for attachment, and plaintiff appeals to this court. Substantially there was no other proof of fraud, or hindering, delaying and defrauding, except giving this mortgage. Is such a mortgage a fraud in law as to creditors? In Robinson v. Illiott, 22 Wall., 513, Mr. Justice Davis elaborately reviews the authorities and reaches the conclusion that such a mortgage is a fraud in law as to creditors.

In the language of that opinion: "It is not difficult to see that the mere retention and use of personal property until default, is altogether a different thing from the retention of possession, accompanied with power to dispose of it for the benefit of the mortgagor alone, the latter is inconsistent with the nature and character of a mortgage, is no protection to the mortgagee, and of itself furnishes a pretty effectual shield to a dishonest debtor." And as in that case so in the case at bar; whatever may have been the motive which actuate the parties to this instrument, it is manifest that the necessary result of what they did do was to allow the mortgagors, under cover of the mortgage, to sell their goods as their own, and appropriate the proceeds to their own purposes, and this too for an indefinite length of time. A mortgage which, in its very terms, contemplates such results, besides being no security to the mortgagees, operates in the most effectual manner to ward off other creditors; and where the instrument on its face shows that the legal effect of it is to delay creditors, the law imputes to it a fraudulent purpose. The mortgage, in the case at bar, is simply a fraudulent attempt, under the forms of law, to provide a shield, by means of which a dishonest tradesman might ward off his creditors for an indefinite period; and the transaction reflects discredit upon all persons connected with it. The note, pretended to be secured, is on demand; there is no provision in the mortgage when it is to be paid, but, for fear there should not be a sufficient protection, there is a provision, in this dishonest instrument, that it shall be a mortgage on goods thereafter to be bought, so long as such purchases shall not exceed the limits mentioned, which is set at thirty thousand dollars, about three times as large a stock as the store usually carried. There is, also, a provision in this fraudulent and scandalous instrument, that Praeger, the mortgagee, and brother-in-law of the mortgagor, may, at any time, upon default of payment of said note, which is payable upon demand, take immediate possession of said stock of goods, so if the court upholds this mortgage, the mortgagee can, at any moment, demand his money, and upon failure to pay, take immediate possession of all the goods in stock, leaving other creditors without remedy. In this case, according to the testimony, "the business was to go on just as it had been going on, the store was to be kept