Statement of Facts.

RIGHT OF INCUMBENT TO HOLD AN OFFICE AFTER EXPIRATION OF HIS TERM.— The incumbent of an office created by the Legislature, who has been elected or appointed to the same, notwithstanding the expiration of the term for which he was elected or appointed, continues to hold the office until a successor has been duly elected or appointed.

1 VACANCY IN OFFICE.-When a mode of filling a vacancy in an office is provided by law, other than by the appointment of the Governor, the Governor has no power to fill such vacancy by his appointment.

APPEAL from the District Court, Sixth Judicial District, Sacramento County.

On the 8th day of March, 1865, four of the Trustees of the State Library held a meeting and balloted for a Librarian, but failed to elect, their votes being equally divided between two candidates. The Board adjourned without any change in the vote, and made no further effort to elect. The Governor, assuming that the expiration of Stratton's term and the failure of the Board to elect had created a

vacancy in the office, on the 22d day of April, 1865, [383] appointed the relator to fill the supposed vacancy. Relator then demanded that Stratton surrender up the office, and upon his refusal to do so commenced the present action..

The law organizing the State Library made the Board of Trustees to consist of five members. The Governor and Chief Justice were ex officio members of the Board. The Chief Justice did not meet with the Board on the 8th of March, 1865. The Governor and one other Trustee voted for J. L. Perkins, and the other two voted for defendant.

Defendant immediately qualified, and in his answer as a separate defense set up that by Section twelve of Article V of the Constitution the Governor was disqualified from acting as Trustee, and that as the three legal Trustees who voted constituted a quorum of the Board, and he received two votes, a majority of the three, he was re-elected for a new term of four years.

The Court below gave judgment that the defendant was

1. Cited, People v. Parker, 37 Cal. 643; Weeks v. Gamble, 13 Fla. 20.

Argument for Appellant.

guilty of usurping the office and that he be excluded from it, and that relator was entitled to the office.

Defendant appealed.

The other facts are stated in the opinion of the Court.

E. W. F. Sloan, for Appellant.

The office of Librarian had not become vacant, upon the supposition that the Trustees failed to elect a successor, on the 8th of March, 1865. The right of the incumbent to hold the office until the election and qualification of a successor results from a rule of the common law founded on public necessity. (State v. Lusk, 18 Miss. 336, 339; Commonwealth v. Hawley, 9 Barr, 516, 518.) The wisdom of the rule has been recognized in the organic law of this State by incorporating the rule itself into its own structure. (People v. Oulton, ante 44.)

It remains to be seen whether the relator is a duly elected and qualified successor. He claims title to the office solely by executive appointment. It is provided by the Constitution, Article V, Section eight:

*When any office shall, from any cause, become [384] vacant, and no mode is provided by the Constitution and law for filling such vacancy, the Governor shall have power to fill such vacancy by granting a commission, which shall expire at the end of the next session of the Legislature, or at the next election by the people."

The lawful exercise of the power depends upon the concurrence of two circumstances: First, the office must have become vacant; Second, there must be no other lawful mode. of filling the vacancy. Neither of these existed.

First. There was no vacancy in the office of Librarian. Section twenty-three of the Act of 1863, "concerning of fices," provides that: "Every office shall become vacant upon the happening of either of the following events before the expiration of the term of such office: First, the death or resignation of the incumbent," etc.

A failure to elect is not one of the events mentioned in the section.

Argument for Respondent.

George Cadwalader, for Respondent.

Conceding that Stratton might hold over, he could only do so up to the time the Attorney-General filed this information. A State might never see fit to fill an office, or the property of the office might be destroyed, still the original appointee could not claim that the contract of the State was to keep him until his successor was appointed. The contract of the State is for the term expressed in the commission-no longer. Hence Stratton must yield his office, though the relator has no title to it. It is the primary duty of the Court under section three hundred and twelve, to determine the right of the defendant to the office. This suit is between the people of the State and the defendant. The relator is only an adjunct. The defendant can gain nothing from the weakness of the relator's title. (People v. Abbott, 16 Cal. 358.)

In Gano v. The State (10 Ohio St. 237), it was declared

competent for the Court to oust the usurper without [385] determining *the right of the claimant. Our Consti

tution has given to the Governor the power to fill all vacancies in office until such a time as the original appointing power acts, and this has been the uniform construction placed by this Court upon Section eight of Article V.

The words in the section, "And no mode is provided in the Constitution and laws for filling such vacancy,” have been construed to mean that the appointing authority have failed or neglected to fill such vacancy; and this interpretation is not an unjust one, because it is a safeguard to the State, and insures the performance of all State functions, and the operation of all laws. Divest the Governor of such authority, and if the incumbent of an office retires at the end of his term, there would be an office without an officer.

The first case is that of People v. Mott, decided by the first Chief Justice of this State. The report thereof appears in the appendix to the third volume of California Reports. (People v. Baine, 6 Cal. 510; People v. Reid, 6 Cal. 288; People v. Mizner, 7 Cal. 523; Brooks v. Meloney, 15 Cal. 58.)

Opinion of the Court-Currey, J.

By the Court, CURREY, J.:

This is an information in the nature of a quo warranto, having for its object-first, the exclusion of the defendant from the office of Librarian of the State Library; and second, the investitute of the relator with the rights, privileges and franchises thereof.

The defendant was appointed to the office on the 16th of March, 1861, for the term of four years, and became duly qualified two days thereafter. Since that time, until issue was joined in this proceeding, he has exercised such office and been in the enjoyment of its privileges, franchises and emoluments.

On the 22d of April of the present year, the Governor of the State, assuming that the office was vacant, by reason of the failure of the Board of Trustees of the State Library to elect a successor to the defendant, appointed and commissioned the relator to hold the office of Libra- [386] rian of the State Library until the Board of Trustees should elect his successor. On the day of his appointment, the relator took the constitutional oath, filed his official bond, and thereupon demanded of the defendant a surrender of the office. The defendant refused to comply with the demand, whereupon this action was brought.

The case was submitted to the District Court upon the pleadings, and on the 12th of May judgment was rendered, ousting and excluding the defendant from the office, its franchises and privileges, and it was further adjudged that the relator was entitled to said office, and to all its rights, privileges and franchises, and he was declared to be "the legal and rightful occupant of said office of Librarian of the State Library."

This judgment the defendant, who has appealed, insists is erroneous on the following grounds:

1. Because there was no vacancy in the office of Librarian to be filled by executive appointment.

2. Because the appellant, at the time of the relator's appointment, was, and still is, lawfully holding said office,

Opinion of the Court-Currey, J.

and is justly entitled to all its rights, privileges and franchises.

The first duty which the Court has to perform is to determine as to the right of the defendant to the office under the circumstances disclosed by the pleadings of the parties. (Pr. Act, Sec. 312.) By the information, it is alleged in terms that during all the time since the 18th of March last, the defendant has usurped, intruded into, and unlawfully held the office of State Librarian, and during all such time has exercised the liberties, privileges and franchises thereof against the dignity of the State and to the damage and prejudice of the relator.

The information sets forth that the defendant was duly appointed on the 16th of March, 1861, to fill the office of State Librarian for the period of four years, and that he became duly qualified and entered upon the discharge of its duties on the 18th of the same month. The defendant ad

mits in his answer this averment, and immediately [387] thereupon avers *that ever since the last-mentioned

day he has "continued to fill said office and exercise the functions thereof, under the laws of said State, of his own proper right. That at no time has there been a vacancy in said office of Librarian since defendant so entered upon the same." He then further answers, claiming that since the 18th of March last, he has lawfully exercised the office of Librarian by virtue of his appointment to it by the Board of Trustees of the State Library, on the 8th of March, 1865. In reference to this branch of the answer, the facts stated and the position of the parties are in substance the same as appear in the case of Stratton v. Oulton, ante 44, and therefore need not be repeated in this place.

The counsel for the people and relator insist that the defendant's right to the office can be maintained under the pleadings in this case only on the ground that he was duly elected or appointed Librarian by the Board of Trustees in March last. In our opinion the defendant may also rely upon the facts which are admitted by the pleadings. That if he has a right in fact to exercise the office under the cir