THE PEOPLE, ex rel. W. T. BARBOUR, v. GORDON N. MOTT, Respondent, 3 Cal. 502

Hastings, Chief Justice, delivered the opinion of the court as follows. This case is brought here informally upon an agreed statement of facts, in substance as follows:— The legislature at its last session having created the Tenth Judicial District, and not having appointed a Judge therefor, the Governor, on the 1st day of May last, issued a commission to the respondent, who was duly qualified, as required by law.

That the relator, on the 10th day of October last, received a commission from the Governor as Judge of said district, having been elected by the people at the September general election, and was duly qualified by taking the constitutional oath of office. That the relator having appeared in court, the respondent then being on the bench, claimed the rightj to exercise the duties of Judge of the court. The court decided that he had not such right, and adjourned until the 3d Monday of October, for the purpose of ■ obtaining the decision of this court upon the right set up by the .relator.

The office of District Judge is usually termed a constitutional ■ office, as distinguished from those offices which are created by the ■ legislature. It is an office whose term is fixed by the Constitution, and it is not in the power of the legislature to abridge or in any manner impair its functions. Nor can the legislature supply a vacancy in it at any time, in any manner contrary to the plain meaning and intent of the provisions of the Constitution. Art. 6th, sect. 5th, creates two terms, of different duration, the first for two years, and the second and all succeeding terms for six years.

The first was merely provisional and temporary, the second and all future terms permanent, and the office ever thereafter elective. The District Judge for the first term was to be “ appointed by the joint vote of the legislature at the first meeting.” This is the only instance in which the legislature can exercise the power of appointment of a District Judge, and seems to have been conferred upon that body in the one instance, on account of the inconvenience and delay attending an election of the people on the primary organization of the several departments of the state government.

In case of a vacancy happening after the first session,

section 8th, art. 5th, provides, not that the legislature shall appoint, but that 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 of the people. If the appointment of the District Judge could not be made by the legislature, why is the commission to expire at the close of its session ?

The object of this clause seems to "be, to enable the legislature to make the appointment, if it be the duty of that body to do so, by the Constitution or laws, or to enact laws for this purpose, provided the people could not otherwise elect, but if they could elect, then the commission is limited to the period of an election, and not by the end of a session of the legislature. The 8th

section referred to, does not authorize the executive to supply the vacancy for the term. It contemplates that either the legislature or the people shall supply the balance of the unexpired term. The statute which we are now called upon to pronounce unconstitutional and void is one of the laws providing for filling a vacancy in an office made elective.

The Constitution not authorizing the executive to fill the vacancy to the end of the term, this power must be exercised by the people or the legislature.- The legislature, if possessing such power, have conferred it upon the people by this statute, and it will not be questioned that if the Constitution had been silent upon the mode of appointment to office, the legislature could delegate the power to the people to elect to every office, judicial and civil. It is contended that the executive appointment should continue to the end of the term.

This is not the language of the instrument, and must only be supported by inference. And we will not by implication confer that power upon the executive which is so repugnant to the spirit and policy of the Constitution. The words “ next election by the people,” the legislature has construed to mean, the next election after the vacancy happens. We see no reason to believe that any other was intended. If the next general judicial election was intended for District Judges, it would so have been expressed.

In support of the present statutes, we do not deem it necessary to cite authorities to the principle, that before a law can be held unconstitutional, it must be clearly repugnant to the Constitution, nor to the point, that if the meaning of a constitution be doubtful, its general spirit and policy shall govern. We think the relator, W. T. Barbour, is rightfully entitled to the office of District Judge of the Tenth Judicial District for the remainder of the present term of District Judges of this State.