People v. Whitman.

1. At the general election in 1857, Whitman was elected for a full term, as Mandeville was then a disqualified person, and of those qualified, Whitman received the highest number of votes. 2. That there was no constitutional vacancy, and, therefore, the Governor had no power to appoint Melony.

In relation to the first point, if Mandeville was disqualified, no vote could be counted for him. The votes would have to be treated as blanks, or as if cast for a fictitious person. Was, then, Mandeville disqualified?

The President of the United States issued a commission to Mandeville as Surveyor-General, which commission was received by Mandeville in August, 1857, and some time before the election; this commission he has ever since held.

The Constitution disqualifies all persons "holding any lucrative office under the United States."

An office lies in grant. It is a right conferred on an individual by the government. This right is conferred whenever the government's patent is issued and delivered to the individual. The delivery of the patent is the investiture of the officer.

As a general rule, this does not appear to be denied, and, indeed, it does not seem to be a disputable point. The rule is clearly laid down in Marbury v. Madison, 1 Cranch, 137, and has been recognized in several succeeding cases decided by the same Court.

It is said, however, that this can not be the construction, for then the President of the United States would have the power to disqualify any person for a State office. We reply, so has the President the power (not the right) to do many mischievous things. If he is disposed to indulge in tricks of wanton wrong, he may involve the nation in causeless war. It is not to be presumed that the President will do any such unjustifiable or unreasonable thing, and no conclusion of the slightest weight can be founded on any such presumption. It is to be presumed that the President will justly and fairly administer his office.

It is to be remembered that it is not always that an office is one to be accepted or declined at pleasure. The State is supposed to have the right to demand service, and in earlier and purer times, before the period of professional office-hunters, the performance of official service was often enforced by severe penalties.

When a patent is delivered, everything is done for the grantor to do. The sovereign power is fully expressed, and the grantee has the property. The bond required is no condition precedent. It is indeed no condition to the grant. It is a duty which the law imposes, and if not complied with, may operate a defeasance, if such is the provision of law or the will of the grantor, but until it has operated such defeasance, the grant remains.

People v. Whitman.

If this view be correct, of course it follows Whitman has the present and a continuous right to the office.

If there be any question as to the preceding point, we think there can be none as to the second point made.

What constitutes a vacancy is clearly laid down by this Court in The People v. Wells, 2 Cal., 204. In which case, it is ruled that the Legislature can not define or make a vacancy. The Court say: "Vacancy is a fact, the existence of which, like any other fact, is susceptible of being ascertained. Vacancy in an office can only be said to exist when the office or place has no legal incumbent to discharge the duties of the office." This rule stands undisputed, and is the undoubted law, and we ask, did or did not the office of Comptroller have "a legal incumbent" at the time the Governor issued his commission to the relator?

There can be no controversy about this, that Whitman was in office at that time rightfully, fully qualified, and competent. His right to the office was perfect, not merely for the fixed period of two years, but until his successor is qualified.

The question, then, is simply as to how the successor is to be made. The Constitution provides for an election every two years by the people. The people have the appointing power. The people make the successor, and they have only clothed the Governor with the power to act in this respect, when their action has failed to continue an incumbent by reason of " death, sickness, absence, removal, or impeachment." And the Court, in the case cited, say, even some of these do not constitute a vacancy and give an appointing power to the Executive.

In The People v. Mizner, 7 Cal., 524, it is said, "the intention of the Constitution is to restrict and not to extend the power of the Executive in making appointments," and it is undoubtedly true that it was the design of the Constitution to confer on him no more than necessary power.

If it be true, then, that the Legislature can not define a vacancy, that vacancy is determined by the fact of incumbency, and Whitman was incumbent-of course the Executive had no power of appointment. Melony is not a "successor qualified," and Whitman still rightfully holds. Constitution, Art. V, § 8.

Jo. G. Baldwin for Respondent.

The question before the Court is this, was there a vacancy in the office of Comptroller at the time of the relator's appointment? And this question involves the question as to the effect of the commission tendered to Mandeville. If Mandeville held a federal office at the time of the election, it is contended he was ineligi ble to the State office. But we say that the mere tender of a commission does not constitute a holding of an office. The case of Marbury v. Madison, 1 Cranch, 137, is relied on.

But the doctrine in that case has no application to this case.

People v. Whitman.

The question there was not whether the President could make an officer, without his consent, by merely tendering him a commission. The principle would amount to this, that the Presi dent could disfranchise a man whenever he chose, by merely sending him a commission for some petty office, or by filing it in the office of the Secretary of State.

Whenever the President saw an opposition Governor about to be elected, he could send a commission to him, and the other candidate would then be elected by a minority vote.

But the rule is, that where there are inconsistent offices, the acceptance of one is the vacation of the other. We do not understand that the holder is ineligible, but that he can not hold both. The acceptance of the last is not forbidden, but the effect of that acceptance is to vacate the other. This question is expressly decided in 4 Maryland R.

In truth, Mandeville, at the time of the election, held no office. When the election was over, the right to the office was cast on him, but he did not accept it. The people exercised the power of filling the office, but the man designated did not take it. The question, then, is, if A is elected to an office, but does not qualify, is there a vacancy, within the meaning of the Constitution, which the Governor can fill? The Constitution, Art. V, § 2, is in these words:

"The Governor shall be elected by the qualified electors at the time and place of voting for members of Assembly, and shall hold his office two years from the time of his installation, and until his successor shall be qualified."

"Section 8. When any office shall, from any cause 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 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."

"Section 18. A Secretary of State, a Comptroller, a Treasurer, an Attorney-General, and Surveyor-General, shall be chosen in the manner provided in the Constitution; and the term of office and eligibility of each shall be the same as are prescribed for the Governor and Lieutenant-Governor."

It was evidently the intention of the Constitution that offices should be filled periodically. The people are to fill them by general election at stated periods; but if, from any cause, the offices remained unfilled, or become vacated, the Governor is to make temporary appointments, There is no difference between the office being unfilled by failure of the person to qualify, and his qualifying immediately afterwards. In either event, the office is unfilled-that is, vacant. There is an office, and no tenant. This is a vacancy. It is true, the Constitution says that the officer in shall hold his office for two years and until his successor is

People v. Whitman.

qualified. But these last words do not help the other side; for the question is, who is the successor? We say the appointee of the Governor. For definition of vacancy, see The People v. Wells, 2 Cal., 204; The People v. Mott, 3 Cal., 504; The People v. Mizner, 7 Cal., 524.

These cases hold that a vacancy exists, as well by the nonfilling of an office, as by emptying it by resignation, etc.

If, therefore, there was a vacancy in the office at the time of the Governor's appointment of the relator, there is an end of this case.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

The defendant was duly elected Comptroller at the election of 1855; and, within the time required by law, qualified and entered upon his office, which he has continued to hold ever since. At the election of 1857, the defendant and J. W. Mandeville were candidates for the office-the latter receiving the highest number of votes. On the 16th day of August, 1857, Mandeville received from the President of the United States a commission of Surveyor-General of California, took the oath of office on the 6th of September, entered upon his office on the 9th, and notified the proper department at Washington of his acceptance of the commission on the 15th. The election took place on the 3d of September; and Mandeville never qualified or claimed the office of Comptroller. On the 28th of April, 1858, the Governor, regarding the office as vacant, appointed the relator, and the appointment was confirmed by the Senate. The relator, having properly qualified, demanded possession of the office, which demand being refused, he brings this suit.

The only question presented for determination is, whether there was a vacancy in the office at the time of the appointment of the relator. And this question involves the consideration of two points:

1. Was Mandeville disqualified at the time he received the highest number of votes for the office?

2. Conceding that Mandeville was eligible, is the defendant entitled to hold the office until his successor is elected and qualified?

In considering the first point, it must be conceded that the of fice of Surveyor-General is a "lucrative office," and the office of Comptroller an "office of profit," under the twenty-first section of the fourth article of the Constitution of this State. It must also be conceded, that if Mandeville held the federal office at the date of the general election in 1857, he was ineligible to the State office. But to constitute the "holding" of an office within the meaning of the Constitution, there must be the concurrence of two wills-that of the appointing power and that of the

People v. Whitman.

person appointed. If the mere tender of a commission could produce this result, then it would be in the power of the President to disqualify any person from holding a State office without his consent. So far as regards the act of the appointing power, the appointment is complete when the commission is duly issued by the President; but Congress has required the performance of certain acts by the appointee before he can enter upon the discharge of the duties of his office. The person appointed to the office of Surveyor-General is required to give a bond and take an oath before he can possess the office. These acts constitute conditions precedent to the holding of the office. (United States v. Le Baron, 19 Howard, 78.) These acts were not performed by Mandeville when the general election took place in 1857, and he was eligible to the State office when the votes were cast for him. Had he afterwards qualified as Comptroller, and not as Surveyor-General, there could have been no doubt as to his right to hold the State office.

The decision of the Supreme Court of the United States in the case of Marbury v. Madison, (1 Cranch, 137,) is not opposed to this view. In that case, it was held that the power of the Executive over an officer not removable at will, ceased the moment the power of appointment had been exercised; and that the power was exercised when the last act of the President had been performed by annexing his signature to the commission.

If these views be correct, Mandeville was eligible, and was duly elected Comptroller; and, as a matter of course, the defendant was not re-elected to the office, and can not claim to hold it on that ground.

We come now to the consideration of the second point. By the second section of the fifth article of the Constitution of this State, it is provided that "the Governor shall be elected by the qualified electors, at the time and places of voting for Members of Assembly, 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 and explicit. The Governor holds his office for two years, and also holds his office until his successor is qualified. 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. The language of the Constitution is just as clear and express that the Governor shall hold his office until his successor is qualified, as it is that he shall hold it two years from the time of his installation. These two provisions are both contained in the same sentence, closely connected by the copulative conjunction; and both relate to the term for which this officer shall hold his office. (Com. v. Hanley, 9 Barr, 513.)

But the provisions of the sixteenth and seventeenth sections