People ex rel. Wetherbee v. Cazneau

Field, C. J., delivered the opinion of the Court—Cope, J. concurring. In February, 1861, Harvey was appointed Superintendent of Immigration for the port of San Francisco, for the period of two years. In August, 1861, Harvey died, and the respondent, Cazneau, was appointed and commissioned by Governor Downey to fiE the vacancy in the. office thus occasioned. Caznean immediately qualified, and entered upon the duties of the office. On the eighth of January, 1862, Governor Downey sent a message to the Senate, informing that body of the appointment, and requesting its confirmation. The Senate postponed the consideration of this message until the twenty-first of the month. On that day, Governor Stanford, the successor of Governor Downey, sent a message to the Senate, withdrawing “ the appointment.” The Senate, however, proceeded and confirmed it. On the fourteenth of May the Legislature adjourned sine die, and on the twenty-ninth of the same month Governor Stanford appointed Wetherbee, the relator, Superintendent of Immigration, and issued a commission to him. On the second of June, Wetherbee qualified, by taking the prescribed oath, and executing the required bond, and demanded of the respondent possession of the office and its books and papers, which was refused. The present proceeding is to try the right of the parses to the office.

[507]The appointment of a Superintendent of Immigration for the port of San Francisco for a full term is vested by the statute in the Governor and Senate; that is—it is to be made by the Governor, by and "with the advice and consent of the Senate. (Laws of I860,' chap. 57, sec. 1.) Vacancies in offices, where the original power of appointment is thus vested, are to be filled by the Governor during the recess of the Legislature, by granting commissions which shall expire whenever the Governor and Senate shall make appointments to fill the offices. (Act concerning Offices of April 28th, 1851, sec. 41.) The appointment of Cazneau, being for a vacancy, was complete, so far as the Governor was concerned, upon the delivery of the commission. The Governor could not after-wards revoke the appointment, or by any act affect the right of the appointee to the office for the period prescribed by the statute —that is, until the original appointing power—the Governor and Senate—should act and fill the office. The temporary appointment required no confirmation of the Senate. That body could neither add to nor take from its validity by any confirmation or rejection. That body had nothing to do with it. The request, therefore, made by Governor Downey of the Senate to confirm the appointment, and the attempt of Governor Stanford to withdraw the appointment, were both proceedings which could in no respect affect the rights of the appointee.