The San Francisco call., 1898-12-22

host of politicians. The vital issue is: Has the death of Edwards created such a vacancy as the law contemplates shall be filled by appointment by the Governor?
 The friends of A. Chesebrough, whom Edwards was elected to succeed, are cancy will exist after the term for which Chesebrough was originally elected. They claim that the death of Edwards, occurring before he had entered upon his term of office, did not create vacancy; that, therefore, the Governor has no power to appoint any one to succeed Chesebrough, and that Chesebrough must hold over until "his successor is elected and qualified" This would mean until after the next general election, four years hence, or until after a special elec- tion called by the Governor.
 These contentious are based largely on the decision in the case of Melony vs. Whitman, 10 Cal, 38, wherein it was held, among other points, that '"The failure on the part of the Controller-elect to qualify creates no vacancy in the office.''
 On the other hand, those who are inter- ested in having new man appointed to succeed Chesebrough quote from the same decision to show that Chesebrough cannot hold over, and that a vacancy has been created by the death of Ed wards before the latter qualified.
 Section g, article XIII, of the constitu- ion provides for the creation of the State Board of Equalization and says their term of office shall be for four years" It further provides that the Legislature shall have power to provide for the elec- tion of said Board of Equalization.
 Iature enacted section 352 of the Political Code, which provides for such election and reads in part as follows:
 Their term, of office shall be four years commencing from the first Monday after the first day of January following their election
 Section 996, subdivision 9, declares that an office becomes. vacant on a person S refusal or neglect to file his official oath or bond within the time prescribed''
 section 999 declares that the Governor must i'll any office that becomes vacant and no. mode is provided by law for fill- ing such vacancy.
 These are the provisions of the consti- luton and the staeute laws bearing on the matter. And it is on the strength of these that the opponents of Chesebrough claim there can be no extension of his term. They point out vital flaw in his claim It lies in the words prescribing the term of office for members of the they say differs materially from that de- lining the term of office of the Controller
 In the case of members of the Board of Equalization the term is for a fixed period, without any qualifications. In the case of the Controller it is provided by section IT, article V, of the constitution that his term Of office shall be the same as that of the Governor. Section of the same article of the constitution pro vides that the Governor shall hold his office for four years, "and until his suc- cessor is elected and qualified"
 The distinction between a fixed term and a qualified term was clearly brought out in the Supreme Court decision al- ready referred to. After deciding that the incumbent Controller held from the time of his installation in office, and until his successor had qualified, 1t went on and made this important and significant dic- tum:
 ''The case is different with respect to District and Supreme Judges. They hold their offices from day certain, and for a fixed period, and not until their success ors are qualified"
 Those who are opposed to Chese- brough's continued incumbency hold that this dictum applies most directly and clearly to the present conditions sur rounding the office which Edwards was elected to fill, and that a vacancy will exist on January 2.
 In justice to Chesebrough it can be stated that he does not want the office. and even if he could hold it under the law would so his friends say, resign. Un- der no circumstances would he continue to serve.