The record-union., 1891-01-22
Filled January II, 1911


THE PEOPLE EX REL. LAINE,l
Respondents, No ore
q. q. TYRRELL, Appellant.
On November II, 1854, during q recess of
the Legislature, a vacancy existed in the men,
bershlp of the State Board of Health and on
that day the appellant, TyrrelI was appointed
amember of said board, and in the commits
sion issued to him by the Governor it was re-
cited that he was thereby appointed "a men,
Der of the State Board of Health. vice f. w.
Hatch, deceased, for the term cTpi,'ing January
IL. 1883. Appellant duly qualified as such
officer Novembe 10, ] SS4, and since that date
has continued to discharge the duties of said
Office.
Upon January 20, 1885, the Legislature be-
ing in session, the Governor transmitted to
the Senate q message informing that body of
appellants said appointment on November
y, 1SS4, FOR ne term Of four gears, vicc +. W.
Ldfch, deceased" ard the Senate was re-
queSted to consent thereto. The Senate took
action upon said message, and the question
will the Senate advise and consent to the ap-
pointment of g. G. Tyrrell OF Sacramento as a
member of the State Board of Health for the
term of four years, rice +. w. Hatch de-
ceased?" was decided in the affirmative The
Governor did not thereafter issue to appellant
any commission for said Office nor has he
since such action of the Senate taken any
oath of Office as a member of said Board.
On March Is, 1889, during Il recess of the
legislature the Governor appointed the rn
lator. Laine, to the said Office of member of
the State Board of Health, and upon that day
he duly qualified such.
The judgment of the court below was in
favor OF the relator, and ousting the appellant
from said Office. From this judgment and an
order denying his motion for n new trial the
defendant, Tyrrell, appeals.
We think the commission issued by the
Governor to appellant on November IL
1854, must be held to have legal effect
simply as an appointment tofili the vacancy
then existing, until the adjournment OF the
next session of the Legislature, as the Gov
ernor was not authorized to make an appoints
~ M laT1Tr
recess OF the Legislature. (Pol. Code, Section
10000
Upon the issuance of this commission the
appointment to ELL such vacancy Temporarily
was complete, and needed no action of the
Senate to confirm il. people vs. Cazneau 90
Cal. 504l. And we think that under this com
mission the appellant was vested with the
right to hold said Office until the appointment
and qualification ofa successor, in the mode
provided by law. Section S79 of tile Political
Code declares: Every officer must continue
to discharge the duties of his Office aIthOlIob
his term has expired, until his successor has
Qualified and Section 1000 of the Political
Code does not create an exception to this
rule, in the case of officers Temporarily ap-
pointed by the Governor. The Language of
that section, "but the person so appointed can
only hold the Office until the adjournment
OF the next session of the Legislature -
simply means when construed with Section
S79, as it must be, that the term of such an
nointed officer shall expire upon the adjourn
m INT of the next session of the LepisIature
NJ successor has been appointed, then the
very condition of affairs intended to be pro-
Nided for by Section S79 has arisen and that
section applies.
1t is the settled law of this State that the
mere eX piratlon OF the term of the incumbent
or an ottlce does not create a vacancy therein
such as the Governor alone is authorized to
fiii by the appointment of a successor people
vs., Triton, 81 Cal. 81 People vs. Bissell. 40
Cal. 407.)
1t would follow from this that the appoint
ment of the relator during a recess of the
legislature was invalid, unless under Section
$50 of the Political Code, vacancy was
created by the failure of the appellant to take
and ME his official oath after the confirmation
OF the Senate The obligation to take and file
such oath did not arise unless the message of
the Governor announcing the appointment of
appellant during the recess, and the action of
the Senate advising and consenting to the
same. constituted an appointment of appellant
as his own, successor. But even coristr1lina
these acts of the Governor and Senate as a
nomination and confirmation of appellant as
his own successor land whether they can be so
construed we do not determine), such appoint
ment was not completed, no commission