There was a vacancy in the office when the Governor made the appointment. The Act of 1863 fixed the term at four years and until a successor was appointed, and but for subsequent legislation Bissel would have been entitled to the office until November 29, 1875, and until a successor was appointed. But the Act of 1863 was repealedby the Codes, and this repeal would have legislated Bissel out of office, but for the provisions of section 6 of the Political Code (before the late amendments). This section is as follows:
Section 6. " All persons who, at the time this Code takes effect, hold office under any of the Acts repealed, continue to hold the same according to the tenure thereof, except those offices which are not continued by one of the Codes adopted at this session of the Legislature."
The office of Inspector of Gas Meters was substantially continued by the Political Code. (Secs. 343, 368, 369, 577, et seq. ) But the office under the Code is filled by appointment of the Governor, with the consent of the Senate, and the term is shortened from four years and until a successor was appointed, to a period certain, viz, to two years. The old successor clause is omitted. (Secs. 368 and 369.)
It is conceded, therefore, that under section 6, as it stood before the amendment, Bissel was entitled to hold the office according to the tenure prescribed in the original Act of 1863. But the last Legislature amended section 6 by adding to it the words " and excepting offices filled by appointment."
Wemaintain that this amendment took Bissel's office out of the operation of the continuing clause in section 6, and exposed it to the whole force of the repealing clause of the Code as contained in section 18.
JUDGES: Wallace, C.J. Rhodes, J., concurring. Mr. Justice McKinstry concurred specially in the judgment.
OPINION
WALLACE, Judge
Bissel held the office of Inspector of Gas Meters under the Act 1863, and his term of office under that statute, being four years, would have expired on the 29th day of November, 1875. Though the Act of 1863 was repealed, the office he held was, nevertheless, continued by the Political Code. If we assume that he was not continued in office under section 6 of the Political Code, as amended in March, 1874, because the office was one filled by appointment, he is, nevertheless, authorized by section 879 of the same Code to continue to discharge the duties of the office until his successor has qualified. Parkinson is not his successor, because his appointment has not received the consent of the Senate, as required by section 368 of the Political Code. So long as Bissell, therefore, continues to discharge the duties of the office pursuant to the requirements of section 879 of the Code, even though his term of office has expired, there is no vacancy in the office, in the absolute sense, nor in any sense which would authorize the Governor to fill it without the consent of the Senate first had. Such a vacancy could only be caused by the resignation or death of the incumbent, or some other event by which the duties of the office were no longer discharged at all, in which case, and in order to prevent a failure of the public service, the Governor might appoint during the recess of Senate.
The judgment of the Court below is reversed, and the cause remanded, with directions to render judgment for the defendant pursuant to the specific prayer of the answer.
CONCUR
RHODES
Rhodes, J., concurring:
If it be held that section 5 of the Political Code is applicable to this case, so that the provisions of the Code in respect to the office of Inspector of Gas Meters are to be regarded as a continuation of the statute of 1863, then Bissell, the then incumbent of the office, would continue to discharge the duties thereof for the term mentioned in the Code, and after the expiration of that term would, by virtue of section 879 of the Political Code, continue to discharge the duties of his office, until his successor was qualified, and in that event the power of the Governor to appoint a successor not having accrued, because there was no vacancy in office which the Governor was authorized by statute to fill, the appointment of Parkinson would be void. But if, on the other hand, it be considered that by the operation of section 18 of the Political Code, the statute of 1863 is to be considered as repealed, then section 6 is applicable to the case, and by its provisions the then incumbent would continue to hold office under that Act " according to the tenure thereof." The word " tenure," as used in this section, is in my opinion, to be construed as meaning term, the effect of which is to continue the incumbent in office for the period of four years from the time of his appointment. And under that construction--his term not having expired--the Governor had no power to appoint.
Section 6 was amended in 1874 by adding to it the words " except officers filled by appointment; " and the effect of the amendment was to cut off the term of office of the incumbent, at the time the amendment took effect. That amounted, in effect, to the expiration of his term, within the meaning of section 879 of the Code; and by virtue of that section he would continue to discharge the duties of his office, until his successor was qualified. It results from this that there was no vacancy in the office which the Governor was authorized to fill by appointment.
I concur with the Chief Justice in respect to the kind of vacancy in office which must exist, in order to authorize the Governor to appoint during a recess of the Senate; and I concur in the judgment.