Questions involving the same principles as those under discussion were determined in People w. Hammond, 66 Cal. 654. Under the act of April 1, 1878, the respondent in that case, and two others, were appointed by certain district court judges, named in the act, police commissioners for the city and county of San Francisco. By the constitution of 1879 the judges of the courts named were superseded, but the powers given to them by the act referred to were not vested in any other person or tribunal. It was claimed by the relator in that case, as it is by the relator here, that under section 8, article V., and section 16, article XX., of the constitution, the office became vacant at the expiration of four years from the date of the defendant’s appointment, and that [156]the governor had the power to fill such vacancy. These contentions did not receive the sanction of the court; it was held that there was no vacancy which the governor was authorized to fill. Unless that case is to be overthrown, it is an authoritative adjudication against the claim of the relator herein, and entitles the defendant to hold the office until his successor has been appointed or elected, and has qualified, or until the office has been abolished by the power which created it. It would be sufficient to rest the decision herein upon a reference to that and other cases involving similar questions (see People v. Pond, 89 Cal. 141); but we may add that the case at bar contains some elements which make the defendant’s position stronger in this case than it was in the case referred to. The police commissioners referred to in People v. Hammond, 66 Cal. 654, were all appointed by the judges superseded by the new constitution. In the case at bar a majority of the members of the board of fire commissioners are still appointed by the board of supervisors, and will continue to exercise the functions of the office, unless the act be declared wholly void. The police commissioners had no fixed term of office; the term of the fire commissioners is fixed at four years. Where the term of office is fixed, determinate, a provision requiring the officer to continue “ to discharge the duties of his office, although his term has expired, until his successor has qualified ” (Pol. Code, sec. 879), “ adds an additional, contingent, and defeasible term to the original fixed term, and excludes the possibility of a vacancy, and consequently the power of appointment, except in ease of death, resignation, ineligibility, or the like.....It is certain, therefore, that all offices to which the above constitutional provision applies are held by the same title, or by as high and lawful tenure, after the prescribed term, until the title of a duly elected and qualified successor, at least, as before and during such term.” (State v. Harrison, 113 Ind. 434.) Section 8, article V., of the constitution provides that “ when any office shall, from any cause, [157]become vacant, and no mode is provided by the constitution and law for filling such vacancy, the governor shall have power to fill such vacancy,” etc. The office must have become vacant before the executive function of appointment can be exercised. The word “ vacancy,” as applied to an office, has no technical meaning. Section 8, article V., was copied from the old constitution, and the meaning of the term “vacancy” has been several times expounded by this court. (People v. Tilton, 37 Cal. 614.) In People v. Bissell, 49 Cal. 411, the court said: “ So long as Bissell, therefore, continues to discharge the duties of the office pursuant to the requirements of section 879 of the code, even though his term of office has expired, there is no vacancy in the office, in the absolute sense, nor in any sense which would authorize the governor to fill it without the consent of the senate first had. Such a vacancy could only be caused by the resignation or death of the incumbent, or some other event by which the duties of the office were no longer discharged at all, in which case, and in order to prevent a failure of the public service, the governor might appoint during the recess of the senate.” (See also People v. Whitman, 10 Cal. 38; People v. Stratton, 28 Cal. 388; People v. Tyrrell, 87 Cal. 479; State v. Johns, 3 Or. 537; Rightmire v. Camden, 50 N. J. L. 48; Stilsing v. Davis, 45 N. J. L. 390.)
It has been held that an officer will hold over until his successor is qualified, although the constitution says he is ineligible for a second term. His holding over is simply a prolongation of the old term. (Carr v. Wilson, 3 L. R. A. 68.) It is in no sense a new term. During the time he holds over his salary cannot be increased, and he and his sureties are liable on his official bond for all his acts until his successor is elected or appointed and qualified. (State v. Smith, 87 Mo. 160.) Of course, the language of the statute or constitution may show an intention to fix and limit precisely the tenure of an officer, so that at a particular time his authority will cease, although an absolute vacancy and absence of authority [158]result therefrom, as in the case of Gosman v. State, 106 Ind. 203, where it is held that a constitutional provision that “ no person shall be eligible to the office of clerk more than eight years in any period of twelve years,” imposed an absolute disability upon Gosman to continue in the office of clerk for a longer period than eight consecutive years. Unless such intention appears, however, the officer is entitled to exercise the functions of his office until another person is qualified to assume them. (Bunker v. Gouldsborough, 81 Me. 194.)
It is claimed that section 16 of article XX. of the constitution makes it unlawful to occupy an office created by the legislature for a longer period than four years. That section provides that “ when the term of any officer or commissioner is not provided for in this constitution, the term of such officer or commissioner may be declared by law; .... but in no case shall such term exceed four years.” This question, also, was passed upon in People v. Hammond, 66 Cal. 654, and requires no further notice. See also State v. Harrison, 113 Ind. 434, where the purpose and effect of a similar provision is discussed. This section is a re-enactment of section 7, article XI., of the old constitution, which was held not to forbid a holding over until a successor has been chosen and has qualified, but merely to limit the incumbent’s term by election or appointment. (People v. Stratton, 28 Cal. 388; People v. Tilton, 37 Cal. 614.) As the section is substantially the same as it was in the former constitution, it must be construed in the same way. (Sharon v. Sharon, 67 Cal. 189.)