McKinstry, J., dissenting: I dissent. I am able to discover no constitutional objection to Section 879 of the Political Code, which reads: “Every officer must continue to discharge the duties of his office, although his term has expired, until his successor has qualified.” The section does not operate to extend the term of any officer “beyond the period for which he is elected or appointed.” (Constitution of California, Art. xi., § 9.) It is prospective in its operation, and applies only to officers elected or appointed after it was enacted. As to such an officer, his term is not extended, but the section referred to forms part of the law which establishes his term. He is elected or appointed in view of the possible event that his successor may not qualify within the definite period which constitutes his term in case his successor shall qualify within such period. Section 879 should be read in connection with the other provisions of the Code relating to terms of office, and, so read, each officer is elected or appointed for a definite period, and such additional time, if any, as may elapse between the expiration of the definite period and the qualification of his successor. Nor can resort properly be'had to the words “although his term has expired,” "to modify or control the evident intent of the Legislature, as expressed in Section 879. The other provisions of the Code which relate to the term of any officer are to be read with the condition that the term fixed by such provisions shall be continued until the successor shall qualify.
If the Act of March 7,1881 (Stats. 1881, p. 72), is to be construed to repeal or abrogate Section 4109 of the Political Code, as the same stood prior to that date, then either the county officers who shall be elected in Yolo County under the Act of March 7, 1881, or those who may be “appointed” ad interim by the Governor or other appointing power, will be the successors of the present county officers.
If those who shall be elected under the Act of March 7, [568188]1, will be the successors of the present officers, the Act necessarily extends the terms of the present officers. The present officers were elected to hold office until the first Monday in March, 1882, or until those elected in 1881 should qualify. If the Act of March 7, 1881, has repealed the section of the Code under which they were elected, the present officers—as a direct consequence of that Act—will continue in office until the first Monday after the first day of January, 1883, or until those elected in 1882 shall qualify. The act therefore extends the terms of the present officers beyond the period for which they were elected, and, so construed, is violative of Section 9, Article xi. of the Constitution,
The section of the Constitution applies as well to the terms of officers elected before as to those elected after the Constitution went into operation. It is a limitation upon the power of the Legislature chosen under the present Constitution, and there is nothing in the language employed which can be supposed to authorize an extension of the terms of those in office when the limitation took effect.
It has been suggested that the effect of the Act of March 7,1881, will be to create a vacancy as to each county officer from the first Monday in March, 1882—to be filled by the appointing power. But it is clear that the Act can not be held to make such vacancy as can be filled by the Supervisors, or by any officer other than the Governor. Section 996 of the Political Code defines the vacancies which may thus be filled, and declares that such vacancies shall occur only by reason of certain acts or omissions of the “incumbent,” before the expiration of his term.
It is said, however, that the Governor has power to fill the vacancies until the next election by the people. (Const., Art. v., § 8.) Thus, to construe the Constitution and the Act of March 7, 1881, is to declare that the power has been transferred to the Governor to appoint all county officers (whose terms are supposed to be affected by the legislation we are considering) to hold from the first Monday of March, 1882, until the first Monday of January, 1883. There is nothing in the language of the Act of March 7, 1881, to indicate that such concentration of patronage was within the contemplation of the Legislature, and if anything is clear from the Constitu[569]tion as a whole, and from many of its provisions separately considered, it is a design that matters of local interest shall be regulated and conducted by officers selected by the people of the several counties, towns, and cities, or by those appointed by such as are so selected. It would seem to be the evident intent of the present as well as former Constitution to limit the executive patronage. (People v. Mizner, 7 Cal. 519.)
But in case the Act of March 7, 1881, should be construed as entirely abrogating Section 4109 of the Political Code, the question would remain, Will vacancies occur such as the Governor is authorized to fill? Sections 2,15,and 16 of Article v. of the present Constitution—except in certain particulars not affecting any question involved in the present controversy— are like Sections 2,16, and 17 of the same article of the former Constitution. In People v. Whitman, 10 Cal. 45, it was said: “The Constitution itself clearly defines the sense of the phrase ‘ vacancy in the office of Governor ’ as used in the sixteenth section, by specifically enumerating in the succeeding section the instances which devolve the duties of the Executive upon the Lieutenant-Governor. It will be seen that all the instances mentioned are such as can only occur after the term of the Governor has commenced to run. * * * When the Constitution clearly enumerates the events that shall constitute a vacancy in a particular office, we must suppose all other causes of vacancy excluded.” With reference to the second section of the fifth article, the Court in the same case said: “By this section it is provided that ‘the Governor shall be elected, etc., and shall hold his office two years from the time of his installation, and until his successor shall be qualified/ This language is exceedingly plain. The term of the office is fixed at two years certain, with a contingent extension. When this contingency happens, this extension is as much a part of the entire term as any portion of the two years.” “ If the Governor-elect fail to qualify, from any cause, the Governor would hold over until his successor be elected and qualified.” The Court proceeded to apply the definition of the word “ vacancy ” in the phrase “ vacancy in the office of Governor ” to the office of Controller, and held that it was only where a vacancy thus defined occurred that the Governor had power to [570]appoint a Controller—adding: “If the Controller-elect fail to qualify from any cause, the Controller holds over until his successor is elected and qualified. It' is only where there is no incumbent of the particular office to hold over that the system will allow the appointment of the Executive to fill the office.”
If Section 879 of the Political Code is valid, and constitutes a portion of the law fixing the terms of county officers, the principles applied to the construction of the clauses of the former Constitution are applicable to the present Constitution and the statutes which relate to terms of county officers. These officers, like the Governor, hold office until their successors qualify. They continue to be the incumbents until successors are elected and qualify. If there is a failure to elect a successor, no vacancy occurs to be filled by the Governor. There is nothing in the nature of things—in the absence of express provision to that effect—which requires that the incumbents should be supplanted by those in whose selection the people have no voice. Indeed, the whole argument that the Governor may fill the county offices in case there should be no election this year, seems based upon the proposition that Section 879 of the Political Code, which authorizes every officer to continue to discharge the duties of his office until his successor is qualified, is repugnant to the provision of the Constitution which prohibits the Legislature from extending the term of any officer beyond the period for which he was elected. (Art. xi., § 9.) We have endeavored to show that Section 879 is not obnoxious to that objection. The purpose of the prohibition of the Constitution is sufficiently obvious. It is to relieve members of the Legislature from the solicitations of partisan office-holders, and to remove any temptation for those in office to employ their influence to secure a continuation of official life without any appeal to the popular voice. The terms of county officers may be fixed in advance, but no man in office can have his term extended by an act of the Legislature.
The Act of March 7, 1881, provides that the successors of the present county officers shall take office (if they shall then have qualified) in January, 1883, instead of March, 1882; Section 879 of the Political Code (which has not been re[571]pealed) provides that the present officers shall continue in office until their successors shall qualify. If Section 4109 of the Political Code is dead for every purpose, the terms of the present county officers have been extended by the Act of March 7, 1881. We can not, under the Constitution, give such an effect to that Act.
Nor is it necessary, in order to prevent the Act referred to from operating an unconstitutional extension of terms of office, that we should hold the Act to be absolutely void. There is no necessary conflict between the several provisions of the Constitution mentioned by counsel., There can be no doubt that the Legislature might have legislated in such manner as that their work would have accorded with all the provisions of the Constitution.
It seems to have been assumed by counsel that the Legislature could not comply with the mandate of the Constitution “to provide for the election or appointment” of officers in the several counties, “ prescribe their duties and fix their terms,” without incidentally violating the prohibitory clause that no officer’s term shall be extended “ beyond the period for which he is elected or appointed;” and that when the Legislature fixed terms of office to commence in January, 1883, if the effect was to extend the terms of the present officers, it was an effect necessarily resulting from obedience to the constitutional mandate. But certainly a clause might have been inserted in the Act of March 7,1881, in substance— “ This Act shall not be construed to extend the term of any officer.” The Constitution inserts this clause—it may plainly be read by all expounders of the law. It is not necessary to assume, however, that it was the legislative intention to extend the term of any officer. The Act of March 7,1881, simply provides that certain officers shall be elected at a certain election, their terms to commence at a certain date thereafter. Full force and effect can fié given to the Act without holding it to mean that there shall be no election of such officers in the mean time. There is nothing in the Constitution which prohibits the shortening of the term of the present county officers, or of those who shall be elected this year, by an Act of the Legislature. The Act may fairly be construed as providing for a future system of biennial elections and terms' of [572]office commencing in 1882, and not until then superseding the present system. So construed, it violates no provision of the Constitution. Even admitting that the Act of March 7, 1881, was intended to repeal Section 4109 of the Political Code,, the repeal by implication can have no greater effect than would a distinct repealing clause. If the Act had, in terms, repealed the section of the Code, the Constitution would have intervened and prevented the repeal from becoming absolute. But the Act is prospective, and is to be read as if it had declared “ hereafter the several county officers shall be elected at the general election in 1882,” etc. There is no attempt to interfere with the present system until that election arrives. (P. & A. Tel. Co. v. Commonwealth, 66 Pa. St. 72.)
It has been further urged, that there can be no election of county officers this fall, because there is no law providing for a general election this fall. It is said that the Act of April 16, 1880 (Amdts. 1880, p. 77), amends Section 1041 of the Political Code, by providing that the general elections shall be held on the even instead of the odd numbered years. But that Act does not directly refer to the terms of any class of officers, or in any way determine what officers shall be elected at the general election. It is not pretended that its effect was to shorten the terms of county officers, but, on the contrary, that, in connection with the Act of March 7, 1881, it has extended them until such officers shall be succeeded by those elected in 1882. As has been said with reference to the Act of March 7, 1881, it is not necessary to declare the Act of April 16, 1880, absolutely void in order to construe it so that it shall not violate the Constitution by extending the term of any officer.
The Act of April 16, 1880, provided that there should be a general election in 1880 and every second year thereafter; but there was no law for the election of county officers on an even-numbered year until March 7, 1881. Neither of these statutes can be construed to extend the term of such officers. There was no law providing for the election of the county officers in 1880 or 1882, which was operative in the year 1880. So far as such officers are concerned, the election must be held in 1881, because to construe the Act of April 16,1880, [573]as changing the time of their election from 1881 to 1882 would be to extend the terms of such officers. Nevertheless, a general election must be held in 1882, and at that election county officers should be elected as successors of those elected in 1881. This construction of the statutes of 1880 and 1881 will accomplish the purpose of the provision of the Constitution which requires the Legislature to provide for the election of county officers and to fix their terms, without violating the other provision, which prohibits the extension of the term of any officer beyond the period for which he was elected.