Zecher

I dissent.

The result reached by the majority in this case is as incomprehensible as their conclusion in Anderson v. Phillips, ante, page 733 [ 119 Cal.Rptr. 879 , 532 P.2d 1247 ], I will not repeat my dissenting views, but merely point out how indefensible the court’s rule becomes in the instant context.

Judge Scott was reelected to the superior court in June 1974. He received from the Secretary of State an official certificate declaring him to be elected and authorizing him to take an oath of office on January 6, 1975, for a full six-year term. On December 13, 1974, Judge Scott was appointed to the Court of Appeal. This is deemed to be a promotion.

*746 Nevertheless it is not beyond the realm of possibility that Judge Scott would have found the comparative isolation of appellate research and writing less desirable than trial work, and would have chosen to assume the office to which the voters elected him. Had he taken an oath as a , superior court judge on January 6, 1975, there is no rational theory upon which he could have been denied the opportunity to serve, or the voters of Santa Clara County denied the results of their democratic selection of him for a full six-year…

Petitioner, whom former Governor Reagan appointed on January 2, 1975, to a vacancy in an office of the Superior Court for Santa Clara County, seeks a writ of mandate to compel respondents, the Controllers respectively of the State of California and the County of Santa Clara, to pay her salary. 1 Mandate is the proper remedy. (California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 598 [ 116 Cal.Rptr. 361 , 526 P.2d 513 ]; Sawyer v. Colgan *745 (1894) 102 Cal. 283, 293 [ 36 P. 580, 834 ].) We have concluded that the peremptory writ should issue as prayed.

This dispute, like that in Anderson v. Phillips, ante, page 733 [ 119 Cal.Rptr. 879 , 532 P.2d 1247 ], also filed today, involves the duration of a vacancy in a superior court office. The former incumbent of the office in dispute, Judge James B. Scott, was elected to a new term at the general election of June 4, 1974. His new term was to commence on January 6, 1975. (Cal. Const., art. VI, § 16, subd. (c).) Judge Scott vacated the office on December 13, 1974, however, when he became an Associate Justice of the Court of Appeal. He continued in the new office through January 6, 1975, and to the present.…