People ex rel. Att'y Gen. v. Addison
Before: Burnett
Synopsis
The intention of the Legislature to create the office of gauger by the act of May 3,1852, entitled “An Act to provide for the Appointment of a Gauger for the Port of San Francisco,” is too clear to admit of doubt.
The office having been created, must be presumed to be continuing, unless limited .by the terms of the act, or by the nature of the duties to be performed.
There is'nothing temporary in the duties of the office. Nor is there anything in the language of the act limiting the duration of the office.
The period of two years, mentioned in the first section, limits only the term of the officer and not the duration of the office.
Where the appointment to an office is vested in the Governor, with the advice and consent of the Senate, and the term of the incumbent expires during the recess of the Senate, the Governor has the right to fill such vacancy, and his appointment vests in the appointee the right to hold and discharge the duties of such office for the full term, subject only to be defeated by the non-concurrence of the Senate.
Burnett, J., delivered the opinion of the Court Terry, C. J., and Field, J., concurring.
The objections made against the claim of the defendant are two:
1. That there is no such office now in existence, it having expired by the limitation in the act creating it.
[72]. That the defendant was appointed in the recess of the Senate.
The office was created by the act of May 3, 1852, the first section of which reads as follows :
“The Governor is hereby authorized and directed to appoint, by and with the advice and consent of the Senate, a gauger of wines and liquors, to reside in the city of San Francisco, and to continue in office two years.”
The second section requires the gauger to take the oath of office, and give bond for the faithful discharge of his duties; the third section prescribes his duties and compensation; and the fourth fixes the penalty to be incurred for selling liquors without previous inspection.
It is true there are no words in the act expressly creating the office. It is also true, that in most of the acts creating offices there are either express words creating the office, or there is a provision that the incumbent shall hold his office for a given period, and until his successor is elected and qualified. But we think the intention of the Legislature to create the office of gauger is too clear to be doubted. The first and second sections speak of the “office;” the third, of the “ officer;” and the first, of “ gauger;" and the fourth, of “ inspector.” The office having been created, must be presumed to be continuing, unless limited by the terms of the act, or by the nature of the duties to be performed. In reference to this office, there is nothing temporary in its duties, nor is there anything in the language of the act limiting the duration of the office itself. The period of two years mentioned in the first section, only limits the term of the officer, and not the duration of the office. The fact that there is no provision in the act, allowing the incumbent to hold over until his successor is appointed and qualified, might confine his official existence strictly to the term mentioned.
As to the second objection, that was settled by the decision of this Court in the case of The People v. Mizner, (7 Cal. Rep., 519.)
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