Reid

Mr. Justice Terry concurred.

The fifth section of an Act to establish an Asylum for the Insane of California, passed May 17th, 1853, provides that “the Legislature shall elect on joint ballot one resident physician, who shall be superintendent of the Asylum. He shall hold his office for two years, and until his successor is appointed and qualified,” etc.

The question presented for our decision is, whether the Governor has power to appoint a resident physician, in case of the failure of the Legislature to elect; in other words, does a vacancy occur by reason of the expiration of the term of the incumbent, which the Governor may fill, during the recess of the Legislature ? To our mind, the answer is so obvious, that we cannot but wonder there should be more than one opinion on the subject.

The term of the incumbent is limited to two years, and the words “ and until his successor is appointed and qualified,” were only incorporated to prevent a hiatus or interregnum occurring between the day of the termination of the office, and the date upon which the successor enters upon its duties. From the day on which the term expires by limitation, to the date of the induction of his…