The People ex rel. Casserly vs. Fitch, 1 Cal. 519

By the Court, Murray, J. From the agreed statement of facts in this case, it appears that Jonas Winchester, who was duly elected state printer, resigned his office on the 28th of March, 1851. On the 31st of March, 1851, while the legislature were in session, the governor appointed James B. Devoe to fill the vacancy created by said resignation. Devoe continued in office until the 2d of May, 1851, after the adjournment of the legislature, on which day he resigned. After the resignation of Devoe, the respondent, (Fitch,) was appointed by the governor, and has discharged the duties of the office ever since.

On the first of May, 1851, an election was held in the legislature for the office of state printer, and the relator, Casserly, received a majority of the votes cast, and was declared accordingly duly elected state printer for the unexpired term of said office, and thereupon he took the oath prescribed by law and tendered his bond of office. For the respondent it is contended, that Winchester having resigned during the session of the legislature, and there being no provision for filling up a vacancy occurring during the session, the governor was empowered, by the provisions of the 8th

section of the 5th

article of the constitution, to fill the same,—that the term of Devoe continued until the end of the next session,—that Devoe having resigned after the adjournment of the legislature, the governor had the constitutional and legal power to appoint the respondent, to continue in office until the expiration of the session of 1852. The relator relies upon his election by the legislature. The office of state printer was created by

an act of the legislature, who retained the power of electing and controlling the same.

Section 8,

article 5, of the constitution, provides that “ When any office shall become vacant, and no mode is prescribed by the constitution and laws to fill the same, 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.” This lias in view vacancies in offices where the governor and senate or legislature have the power of appointment, or where they are elective by the people, and provides accordingly ; but sncli power of the governor is limited by the period when the people or the legislature can elect or appoint, on the arrival of which his power ceases, and the right of appointment returns to the proper appointing power.

This was the construction in the case of Barbour v. Mott, (October term, 1851, Supreme Court,) and is sustained by cotemporaneous legislative exposition.

The “Act concerning offices” of April 11, 1850, directs “ that when “ an office shall become vacant during the recess of the legislature, “ the appointment of which is in the governor and senate, or the “ legislature, the governor shall grant a commission, which “shall expire at the end of the next session.” It thus appears that the legislature placed the same construction upon the constitution, limiting the power of appointment to those cases which might happen during the recess of the legislature, and did not think it necessary to provide for cases occurring when the power that originally filled was in readiness to act.

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. The power to appoint to an office carries, by implication, the power to fill a vacancy in such, and all necessary authority to carry out the original power and prevent its becoming inoperative.

We are of opinion that, on the resignation of Winchester, the power of filling the vacancy reverted to the legislature; that the appointment of Devoe, and subsequently of the defendant, was irregular and void ; and that the relator was properly elected, and entitled to exercise the rights and duties of the office. The judgment of the court below must be reversed ; and there appearing by the record no cause for a new trial, judgment must be entered that the relator, Casserly, be authorized to take upon himself the office of state printer, and that the respondent, Fitch, be ousted and excluded from the- same.

Appointed in the place of Behnett, J. resigned.