People ex rel. Langdon v. Reid

The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.

The fifth section of an Act to establish an Asylum for the Insane of California, passed May 17th, 1853, provides that “the Legislature shall elect on joint ballot one resident physician, who shall be superintendent of the Asylum. He shall hold his office for two years, and until his successor is appointed and qualified,” etc.

The question presented for our decision is, whether the Governor has power to appoint a resident physician, in case of the failure of the Legislature to elect; in other words, does a vacancy occur by reason of the expiration of the term of the incumbent, which the Governor may fill, during the recess of the Legislature ? To our mind, the answer is so obvious, that we cannot but wonder there should be more than one opinion on the subject.

The term of the incumbent is limited to two years, and the words “ and until his successor is appointed and qualified,” were only incorporated to prevent a hiatus or interregnum occurring between the day of the termination of the office, and the date upon which the successor enters upon its duties. From the day on which the term expires by limitation, to the date of the induction of his successor, he is a mere locum tenens. Section 7, Article XI of the Constitution declares, that “ when the duration of any office is not provided for by this Constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment. Nor shall the duration of any office not fixed by this Constitution ever exceed four years.” Now the term having been fixed at two years, it is evident that the incumbent did not hold by the tenure of the approbation of the appointing power, neither can he be continued in office by their failure to provide a mode for electing a successor; for, having fixed the term, upon its expiration the office de jure becomes vacant, and can be filled in two ways; either by election in [290]the manner which may be provided by law, or by appointment by the Governor, under the 8th section of the 5th Article of the Constitution.

We have been referred to the case of the State v. Lusk, 18 Mo., 334, in which a similar question arose. The decision in that case is not recommended by sound reasoning on'the part of the Court. It proceeds upon the hypothesis, that as long as the incumbent remained in office, after the expiration of his term, he continued with the approbation of , the Legislature, (the appointing power,) and that there could not be a vacancy, so long as there was a person in the office.able to discharge the duties.