Murray, C. J., delivered the opinion of the Court—Burnett, J., concurring.
The act creating the office provides, that the officer shall hold his office for two years, and until his successor is appointed and qualified.
It will be observed, that at the date of Langdon’s appointment, the term of Reid had expired. Immediately upon the appointment of Langdon, a proceeding was instituted to determine the rights of the parties to the office; Reid contending that he was entitled to continue in office, until his successor was elected and qualified by the Legislature. This question was fully considered in the case of “ The People v. Robert K. Reid,” July Term, 1856, in which it was held, that the law creating the office had limited the term of the incumbent to two years, and that the words “until his successor shall be appointed and qualified,” were not intended to extend the term indefinitely, but to prevent an interregnum in the office, by authorizing the old incumbent to act as a de facto officer until such time as the appointing power, or the power to fill vacancies, could act on the subject.
The appellants now contend, that after Reid's term expired, [12]*12the Governor had authority to fill the office for the whole term, and second, that the Governor had power to fill a vacancy in the office until the end of the unexpired term.
I shall consider the second proposition first in order. The tenth section of the act provides that, “ if any vacancy shall occur in the office of resident, or assistant-physician, such vacancy shall be filled for the unexpired term by appointment of the Governor." The eighth section of the fifth article of the Constitution of this State provides, that when any office shall, from any cause become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill the same by granting a commission, that shall expire at the end of the next session of the Legislature, or the next election by the people."
In the case before us, the law has provided for filling the vacancy, by appointment for the balance of the unexpired term. Waiving the question, whether the Legislature could constitutionally provide for filling a vacancy beyond the period when the appointing power could act upon the subject of the vacancy, it becomes of the first importance to ascertain what is meant by the words “ unexpired term;’’ whether they relate to the office or officer. The counsel for the appellant has very ingeniously assumed that the legal term, of the office is two years; that the term commenced to run from the date of Reid’s commission, and that there was a fraction 'of the term at the date of the defendant’s appointment.
This is a mere petitio principii. If it is to be taken for granted, that the Legislature has fixed distinct terms for the office, which commence and terminate on particular days, then the case of the relator is at an end.
The error of the argument, in my opinion, consists in assuming that the term of the office, and of the officer, are one and the same, when in point of fact, there may be no term in an office, but a term in the incumbent. In other words, that there are no fixed periods whereby a term, as apart from the officer, begins and leaves off. To. illustrate the distinction more fully, the term of the office of Judges of the Supreme and District Courts is fixed at six years. These offices become vacant at a particular point of time, and if no jierson is appointed or chosen to fill them at the time provided, he who is afterwards elected only takes the remainder of the unexpired term of the office.
In the act under consideration, there are no words employed, which, even by implication, would warrant us in assuming that the Legislature intended to create distinct terms in the office of resident-physician, as contradistinguished from that of the officer, or that any term commenced running in the office, except from the induction of the incumbents, but, that they simply intended to provide for the duration of the office of the incumbent. For [13]*13the purpose of ascertaining the intention, let us look for a moment at the practical workings of the construction contended for by the defendant. Reid was elected on March twenty-seventh, 1854. Now, admitting that the term of the office commenced running from that date, it must expire on the twenty-eighth of March, 1856. If, then, the Legislature which was the appointing power, and which was in session, and in a situation to act, failed by some accident to elect before the thirtieth, such election would be void, and after one hour, or one day of the new term had commenced, even although the Legislature was in session, the Governor would have the right to appoint for two years, minus the day, or hour that had expired. Or again, the Legislature may fail to agree in an election; will such failure be construed to deprive the succeeding body of a power of appointment which they have reserved to themselves ?
Let us suppose that the Legislature had elected some one in the place of Reid, one month after his term expired, from what period of time would the commission of the new incumbent, have dated—from the expiration of the two years that Reid was authorized to hold, or from the date of his election. Most certainly from the latter, for the law says the officer shall hold his office for two years. Now, if there was a term in the office, and the party had not been elected until one month after the expiration of the old term, it is evident that he could not hold but one year and eleven months, instead of the two years that the law says he shall.
In the case of Shelby v. Johnson, the Supreme Court of Texas (a case very similar to the one under consideration,) use this language : “ When the incumbent is removed by death, the office becomes vacant and returns to the appointing power. It cannot either in reason or the nature of things, be affected by the nature of the deceased, unless the creative law carries out a definite and precise period for the beginning and termination of the term of the said office, whether the same has been holden by one or more incumbents.” When we come to consider that the Legislature have retained in their own hands the appointment of this officer, I think, that the conclusion is irresistible, that the language of the twelfth section was not designed to apply to the unexpired term of the office, but of the officer or incumbent, and that where the office has become vacant by reason of the expiration of the term of the incumbent, and the failure of the Legislature to elect, that then the general law of the State defining vacancies in office, and the mode of filling the same, would govern.
By adopting this construction, both acts can be upheld, and any apparent or real incongruity reconciled.
Again, the office of resident-physician was created on the seventeenth of May, 1853, and the Legislature adjourned on the [14]*14nineteenth of May without electing an officer, and after said adjournment the Governor appointed Reid, who was elected the twenty-fourth -of March, 1854. How, adopting the reasoning of the defendants, and how stands the case upon this state of facts ? According to their view, as soon as the Legislature adjourned without electing, a vacancy occurred in the office.
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Murray, C. J., delivered the opinion of the Court—Burnett, J., concurring.
The act creating the office provides, that the officer shall hold his office for two years, and until his successor is appointed and qualified.
It will be observed, that at the date of Langdon’s appointment, the term of Reid had expired. Immediately upon the appointment of Langdon, a proceeding was instituted to determine the rights of the parties to the office; Reid contending that he was entitled to continue in office, until his successor was elected and qualified by the Legislature. This question was fully considered in the case of “ The People v. Robert K. Reid,” July Term, 1856, in which it was held, that the law creating the office had limited the term of the incumbent to two years, and that the words “until his successor shall be appointed and qualified,” were not intended to extend the term indefinitely, but to prevent an interregnum in the office, by authorizing the old incumbent to act as a de facto officer until such time as the appointing power, or the power to fill vacancies, could act on the subject.
The appellants now contend, that after Reid's term expired, [12]*12the Governor had authority to fill the office for the whole term, and second, that the Governor had power to fill a vacancy in the office until the end of the unexpired term.
I shall consider the second proposition first in order. The tenth section of the act provides that, “ if any vacancy shall occur in the office of resident, or assistant-physician, such vacancy shall be filled for the unexpired term by appointment of the Governor." The eighth section of the fifth article of the Constitution of this State provides, that when any office shall, from any cause become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill the same by granting a commission, that shall expire at the end of the next session of the Legislature, or the next election by the people."
In the case before us, the law has provided for filling the vacancy, by appointment for the balance of the unexpired term. Waiving the question, whether the Legislature could constitutionally provide for filling a vacancy beyond the period when the appointing power could act upon the subject of the vacancy, it becomes of the first importance to ascertain what is meant by the words “ unexpired term;’’ whether they relate to the office or officer. The counsel for the appellant has very ingeniously assumed that the legal term, of the office is two years; that the term commenced to run from the date of Reid’s commission, and that there was a fraction 'of the term at the date of the defendant’s appointment.
This is a mere petitio principii. If it is to be taken for granted, that the Legislature has fixed distinct terms for the office, which commence and terminate on particular days, then the case of the relator is at an end.
The error of the argument, in my opinion, consists in assuming that the term of the office, and of the officer, are one and the same, when in point of fact, there may be no term in an office, but a term in the incumbent. In other words, that there are no fixed periods whereby a term, as apart from the officer, begins and leaves off. To. illustrate the distinction more fully, the term of the office of Judges of the Supreme and District Courts is fixed at six years. These offices become vacant at a particular point of time, and if no jierson is appointed or chosen to fill them at the time provided, he who is afterwards elected only takes the remainder of the unexpired term of the office.
In the act under consideration, there are no words employed, which, even by implication, would warrant us in assuming that the Legislature intended to create distinct terms in the office of resident-physician, as contradistinguished from that of the officer, or that any term commenced running in the office, except from the induction of the incumbents, but, that they simply intended to provide for the duration of the office of the incumbent. For [13]*13the purpose of ascertaining the intention, let us look for a moment at the practical workings of the construction contended for by the defendant. Reid was elected on March twenty-seventh, 1854. Now, admitting that the term of the office commenced running from that date, it must expire on the twenty-eighth of March, 1856. If, then, the Legislature which was the appointing power, and which was in session, and in a situation to act, failed by some accident to elect before the thirtieth, such election would be void, and after one hour, or one day of the new term had commenced, even although the Legislature was in session, the Governor would have the right to appoint for two years, minus the day, or hour that had expired. Or again, the Legislature may fail to agree in an election; will such failure be construed to deprive the succeeding body of a power of appointment which they have reserved to themselves ?
Let us suppose that the Legislature had elected some one in the place of Reid, one month after his term expired, from what period of time would the commission of the new incumbent, have dated—from the expiration of the two years that Reid was authorized to hold, or from the date of his election. Most certainly from the latter, for the law says the officer shall hold his office for two years. Now, if there was a term in the office, and the party had not been elected until one month after the expiration of the old term, it is evident that he could not hold but one year and eleven months, instead of the two years that the law says he shall.
In the case of Shelby v. Johnson, the Supreme Court of Texas (a case very similar to the one under consideration,) use this language : “ When the incumbent is removed by death, the office becomes vacant and returns to the appointing power. It cannot either in reason or the nature of things, be affected by the nature of the deceased, unless the creative law carries out a definite and precise period for the beginning and termination of the term of the said office, whether the same has been holden by one or more incumbents.” When we come to consider that the Legislature have retained in their own hands the appointment of this officer, I think, that the conclusion is irresistible, that the language of the twelfth section was not designed to apply to the unexpired term of the office, but of the officer or incumbent, and that where the office has become vacant by reason of the expiration of the term of the incumbent, and the failure of the Legislature to elect, that then the general law of the State defining vacancies in office, and the mode of filling the same, would govern.
By adopting this construction, both acts can be upheld, and any apparent or real incongruity reconciled.
Again, the office of resident-physician was created on the seventeenth of May, 1853, and the Legislature adjourned on the [14]*14nineteenth of May without electing an officer, and after said adjournment the Governor appointed Reid, who was elected the twenty-fourth -of March, 1854. How, adopting the reasoning of the defendants, and how stands the case upon this state of facts ? According to their view, as soon as the Legislature adjourned without electing, a vacancy occurred in the office. The term must have commenced running from the nineteenth of May, and as Reid was not ajipointed until after this period, he was appointed to fill the residue of the term which would expire the nineteenth of May, 1855, but the Legislature elected him in March, 1854. How this election, made more than one year before a vacancy would occur, and in derogation of the rights of a succeeding Legislature, which might claim that they affine were competent to elect this officer, was either legal or void. If legal, then Reid held until the nineteenth of May, 1855, by virtue of his appointment by the Governor, and two years more by his election, which would make his term expire on the nineteenth of May, 1857, so that there was no vacancy in the office at the date of Langdon’s appointment, and Aylett, the relator, having been duly elected by the Legislature to fill the next term, would be entitled to the office.
If, on the other hand, the Legislature of 1854, had no power to forestall the Legislature of 1855, by electing the officer, and said election is void, then Reid's term, as the appointee of the Governor, expired on the nineteenth of May, 1855, from which point of time a new term commenced running, which would expire May 19, 1857. Langdon having been appointed (as contended for) on the twenty-ninth of April, 1856, was only appointed for the balance of the unexpired term, which ended on the nineteenth of May, 1857, and the relator having been elected March 13, 1857, is entitled to the office. So that if we adopt the argument of the defendant, he has, by his own showing, lost his case. But, we decided, in the case of Reid, that there was a vacancy in the office, and this decision could not have been made if we had been of the opinion that there was a term in the office, other or apart from that of the incumbent. This construction has been given to the act by two Legislatures, and if the case were a doubtful one, this legislative exposition would be entitled to consideration.
We are satisfied that there is a substantial difference between the term of an office and the term of the officer, or incumbent, and that the twelfth section of the act under consideration applies to the unexpired term of the officer. Adopting this as the true construction, there is no difficulty whatever on this branch of the case, for a vacancy may exist in an office for which there are no terms fixed by law. This, as before remarked, may occur from a failure to elect or appoint. In such cases, it is made the duty of the Governor to grant a commission to fill such vacancy [15]*15until the appointing power can act. The power to fill a vacancy and the power to fill an office are distinct and substantive powers.
In the case of The People v. Fitch, 1 Cal., this Court say: “ The right of the Legislature to elect and control the State Printer, cannot be defeated by any inference in favor of the appointing power of the Governor.” Again, in the case of The People on the relation of Byder v. Hizner, this Court uses this language : “ It would seem that the evident intent and whole spirit of the Constitution of the State was to limit the patronage of the Executive within very narrow bounds. This is seen from the fact that the only office created by the Constitution in which the Executive constitutes any part of the appointing power, is the office of Secretary of State. This is further shown by the provisions of the eighth section of article fifth, which limits the duration of an appointment of the Governor, in eases of vacancy, to the next election by the people, or the next session of the Legislature, except when a different rule is specially provided by statute. The power to fill vacancies had to be vested in some department of the Government, and the Constitution was compelled to vest it in the Executive, because the only department that could be properly and efficiently charged with such a duty. But the Constitution carefully limited this power to fill vacancies for the time only, and when the appointing power for the whole time can act, the appointment of the Executive for the time being ceases.”
If the Court is correct in its former opinions, as to the theory of our Constitution, and the policy which it was the intention of its framers to establish, then every intendment and implication of law would be in favor of the appointment of the relator, unless the language of the statute under which the defendant claims was most clear and explicit. It is true, that the language of some of the opinions of this Court would seem to establish that there was no difference between the term of an office and of its incumbent, but the question was not made in any former case.
Having thus disposed of this point, we will now consider the first proposition: that the Governor had power to fill the office for the whole term.
^ The appellant contends that, under the third article, and the sixth section of the eleventh article of the Constitution, the Legislature have no power to elect an incumbent to an office. The third article provides for the distribution of the powers of government between the executive, legislative, and judicial branches of the government, and forbids those charged with duties belonging to one, from exercising functions appertaining to another department. Under this provision, it is urged that the Legislature may create the office, but cannot elect the officer; that it would be exercising power belonging to the executive branch of [16]*16the government, or to the people. Unhappily for the argument, there is no fourth branch of the government recognized, by the third article of the Constitution, which is represented by the people, and if there is any encroachment upon any other department, it must be upon the Executive.
The power to fill an office is political, and this power is exercised in common by the Legislatures, the Governors, and other executive officers, of every State in the Union, unless it has been expressly withdrawn, by the organic law of the State. That it has not been by our Constitution, there can be no doubt: First, because there is no clause’that would warrant such a construction : and, Second, because there are several that would forbid it.
But it is said that this power is taken away by the sixth section of the eleventh article, which provides that “all officers, whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the Legislature may direct.” Much stress is laid upon the word appointed, as used in this section. This is mere hyper criticism; the former decisions of this Court have substantially settled this point. The word appoint was probably used as a more comprehensive term to convey the idea of a mode of constituting or designating an officer, whether by election or otherwise. In fact, the words “ elect and appoint ” seem to have been regarded as synonymous by the Convention.
The third section of the sixth article requires the first Legislature to elect Supreme Judges, and the fifth section of the same article provides that the District Judges shall be “ appointed by the joint vote of both houses.”
It would be useless to pursue this argument further; this power has been always exercised by the Legislature, and never before denied. It is not prohibited by the Constitution, and according to the theory and spirit of our institutions, is safer when exercised by the immediate representatives of the people, than when lodged in the hands of the Executive.
From the foregoing, our conclusions aro: First, that the Governor had no power to appoint for the full term; Second, that the commission of the defendant expired as soon as the Legislature elected the relator; and, Third, that the relator is entitled to enter upon, and discharge, the duties of the office, for the full term of two years from the date of his election.
Judgment affirmed.