terpretation in the conduct of our State government since 1875, without challenge, until this information was filed. The argument of those who deny the power, that it will tend to deprive the Senate of their just participation in appointments to office, is not of controlling force. It is not logical to argue from an abuse of power to a negation of it. Every authority, however indispensable, may be the subject of abuse. Undoubtedly the Governor may abuse this, as he may any other power entrusted to him, but the argument is equally cogent, that the Senate may arbitrarily refuse to consent to every nomination made by the Governor, and leave him powerless to execute the laws, unless he will accede to its demands. The consequences likely to flow from a denial of the Governor's power are much more to be deprecated than can result from conceding it. The power of the Governor to appoint, where vacancies happen during the recess, extends not only to those offices filled by the Governor with the advice of the Senate, but also to those filled by the Legislature in joint meeting. The failure to fill the latter during the session can result from no breach of duty on the part of the executive. The power of the Governor, after the adjournment, to fill a vacancy, must be the same in both cases; if he cannot appoint in the one case, he cannot in the other; and this shows that it was not intended to put a limitation upon his power to guard against an abuse of his prerogative. The possibility of abuse loses its significance the moment we distinguish between power and duty. The question of power alone can be considered by this court. For willful breach of official duty, or abuse of the power committed to him, the Governor is, like other civil officers, liable to impeachment, and must answer to the tribunal erected under the Constitution for the trial of such cases. Even though the Governor should be guilty of a breach of duty in refusing to send any nomination at all to the Senate during its session, it would be none the less within his power, and his duty after the adjournment, to fill the vacancy. In that case, the impeachable conduct would be his willful refusal to advise with the Senate, and not his act in filling the vacancy in the after recess. The making of the appointment in controversy was, in my judgment, a legal exercise by the Governor of his constitutional prerogative. The propriety of the appointment of Mr. Kuhl, after his rejection by the Senate, was a question for the Governor alone. This court has no right to instruct the Governor as to matters which involve his duty only and not his power. We cannot know the circumstances which influenced his action, and must presume that he acted rightly. There should be judgment for the respondent. See note to State v. Bulkley, 61 Conn. 287 infra. PEOPLE EX REL. SWEET V. WARD. Supreme Court of California. May, 1895. 107 California Reports 236. HENSHAW, J. Appeal from the judgment. The facts, about which there is no controversy, are as follows: Ward, the appellant, was duly elected district attorney of San Diego county for the term commencing January 2, 1893. He qualified and entered upon the discharge of the duties of the office. At the general election in November, 1894, and during Ward's term and incumbency, William Darby was elected to succeed him pursuant to section 60 of the County Government Act of 1893. Darby duly qualified upon November 24th, and on December 15 of the same year died. Section 60 of the County Government Act of 1891 provided that "all elective county officers shall be elected at the general election to be held in November, 1892, and every two years thereafter and shall take effect at 12 o'clock meridian of the first Monday after the first day of January next succeeding their election. All officers elected under the provisions of this act shall hold office until their successors are elected or appointed and qualified.' Such was the law when Ward was elected and when the questions in litigation arose. After Darby's death, and on the 2nd day of January, 1895, the board of supervisors, as then constituted, appointed Ward to fill the vacancy caused by the death of Darby, and to be district attorney "for the term of office to be taken at 12 M. on the seventh day of January, 1895;" and upon the day of his appointment Ward qualified in due form as the appointee to succeed Darby. At 3 o'clock P. M. on January 7th, 1895, the personnel of the board having been changed by the outgoing of two old and the incoming of two new supervisors at noon of that day, the board as then constituted declared a vacancy to exist in the office of district attorney, and appointed the relator to fill the same during the term for which Darby had been elected, and Sweet in due course qualified. Sweet made demand upon Ward for the office on January 10. 1895, and, upon Ward's refusal to surrender it, this action was brought to determine their conflicting claims. By appellant it is contended: 1. That no vacancy in the office resulted from the death of Darby; 2. That if a vacancy did result it occurred eo instanti upon the death of Darby, and it was then the right and duty of the board of supervisors to fill the vacancy, which they duly did by the appointment of himself. Under his first contention he asserts a right to hold until his successor is elected or appointed and qualified. Under his second contention his right is based upon the theory of a vacancy, and his appointment to serve out Darby's term. 1. It is not to be questioned but that if Darby had lived, and at noon of the seventh day of January, 1895, had demanded the office of Ward, he would have been entitled to enter it, and Ward's term would thus and then have ceased and determined. But was a demand by Darby necessary to determine Ward's tenure? The answer is found in the language of the statute. Ward, by section 60 of the act quoted, and by section 879 of the Political Code, was entitled to hold absolutely until noon of January 7th, and contingently after that date, if no successor had been elected or appointed and qualified. He had a fixed tenure and a contingent term. (People v. Edwards, 93 Cal. 153.) The election and qualification of Darby as Ward's successor (and not a demand by him for the office) ipso facto cut off Ward's contingent term, and limited him to the absolute period, that is, until noon of January 7th. (State v. Bemenderfer, 96 Ind. 374; State v. Seay, 64 Mo. 89; 27 Am. Rep. 206; Commonwealth v. Hanley, 9 Pa. St. 513; Gosman v. State, 10 Ind. 206; People v. Supervisors of Barnett Township. 100 Ill. 332; Mechem on Public Offices, sec. 401; Throop on Public Offices, sec. 329.) The word "successor" is used in our statutes, as in the books, in the twofold sense of the one entitled to succeed, and the one who has in fact succeeded. It is here employed in the former acceptation. The Legislature may provide that certain acts, happenings, or 1 events shall create a vacancy in law, while its greatest wisdom cannot prevent the occurrence of vacancies in fact. The death of the incumbent creates a vacancy as a matter of course, and without any expression from the Legislature upon the question. But when, for example, the Legislature declares that the office of a sheriff shall become vacant when he stands committed for sixty days for not paying over money received by him (Pol. Code, sec. 4186), such a vacancy may be described as a vacancy in law. So here, the Legislature having in effect provided that Ward's term upon the election and qualification of Darby came to an end at noon of January 7, 1895, a vacancy in law resulted when Darby's death prevented his succession. It is true the office would not be without an incumbent, since Ward, as locum tenens, could hold until the supervisors by appropriate action appointed to the vacancy, but, as has been said, Ward's incumbency gave him no right to a fixed and definite tenure. This vacancy is in the nature of an interregnum. It arose when upon noon of January 7, 1895, Darby by death was not able to take his office. (French v. County of Santa Clara, 69 Cal. 519; People v. Taylor, 57 Cal. 622.) The expiration of Ward's term alone did not create the vacancy. It was the election and qualification of his successor, and the expiration of the term, which worked the result. It is another instance of a vacancy contemplated by statute, but not expressed in section 996. Mizner, 7 Cal. 519-23.) (People v. 2. The vacancy which occurred having arisen at noon of January 7th, it remains to be considered whether the action of the board of supervisors upon January 2d was legal or illegal, and as this is determined, so will the claim of appellant stand or fall. The board, then, undertook to fill, not an existing vacancy, but one soon to exist; not, however, a contingent or possible vacancy. but one which in the nature of things was certain to arise, though at a future date, and at a time when in legal contemplation, and in fact, a different board would be in control of the county's affairs. Briefly, the act of the board was to make an appointment to take effect, and to fill a vacancy to arise, in the term of its suc cessor. We are not, therefore, here concerned with the question of the power to appoint to fill an anticipated vacancy by the person or body which, as constituted, is authorized to fill the vacancy when it occurs, but solely with the question of an appointment made to fill a prospective vacancy, which will arise at a time when there will have been a change in the appointing power. Upon the election and qualification of Darby his right to the office for the term commencing at noon of January 7th vested immediately, and Ward's contingent right to an additional term was cut off. Upon the divesture of that right by death it existed in no one, and there was no revivor of Ward's contingent right to an extended term. The power of the board of supervisors in dealing with such matters is drawn from section 25, subdivision 21, of the County Government Act of 1891, and it is limited to the filling of vacancies. That power could properly be exercised only upon an existing vacancy. The board could by its action neither create a vacancy, nor by anticipation fill one, which was to a rise in futuro during the term of its successor. Mechem lays down the rule in the following language, and, so far as our investigations have extended, its soundness is not opposed by any dissenting voice: "The appointing power cannot forestall the rights and prerogatives of their own successors by appointing successors to offices expiring after their power to appoint has itself expired." (Mechem on Public Offices, sec. 133.) This is the language of Ivy v. Lusk, 11 La. Ann. 486, while to like effect are the cases of State v. Meehan, 45 N. J. L. 189, and State v. Love, 39 N. J. L. 14. We conclude, therefore: 1. That a vacancy arose in the office of district attorney by reason of the election, qualification, and death of Darby; 2. That this vacancy existed at and after noon of the seventh day of January, 1895, and not before; 3. That the attempt of the first board of supervisors to fill the vacancy upon January 2nd was in excess of its power and void; 4. That the vacancy was properly filled by the existing board at 3 o'clock P. M. of January 7, 1895. Wherefore, it follows that the judgment appealed from is affirmed. TEMPLE, J., MCFARLAND, J., VAN FLEET, J., GAROUTTE, J., HARRISON, J., and BEATTY, C. J., concurred. |