People v. Bissell

49 Cal. 407

• Court: California Supreme Court
• Decided: July 1, 1874
• Docket: No. 4,443
• Status: Published

Opinions

By the Court, Wallace, C. J.:

Bissel held the office of Inspector of Gas Meters under the Act 1863, and his term of office under that statute, being four years, would have expired on the 29th day of November, 1875. Though the Act of 1863 was repealed, the office he held was, nevertheless, continued by the Political Code. If we assume that he was not continued in office under section 6 of the Political Code, as amended in March, 1874, because the office was one filled by appointment, he is, nevertheless, authorized by section 879 of the same Code to continue to discharge the duties of the office until his successor has qualified. Parkinson is not his successor, because his appointment has not received the consent of the Senate, as required by section 368 of the Political Code. 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 Senate.

The judgment of the Court below is reversed, and the cause remanded, with directions to render judgment for the defendant pursuant to the specific prayer of the answer.