People ex rel. Ryder v. Mizner

Citations

• 7 Cal. 519

Syllabus

<p>Where the appointment to an office is vested in the Governor, with the advice and consent of the Senate, and the term of the incumbent expires during a recess of the Legislature, and the Governor appoints a successor to the office: Held, that there has been no vacancy in office, and that this appointment vested in the appointee a right to hold for his full term, subject only to be defeated by the non-concurrence of the Senate.</p> <p>It would seem that the evident intent of the Constitution is to limit the Executive patronage. If the appointment by the Governor to such an office—the term of which expires during a recess—be an appointment to fill a vacancy, the practical effect is to increase the Executive patronage, giving the power of removal from such offices where the term expires during a recess of the Legislature, by failing to appoint during the session preceding.</p> <p>In order to establish that such an appointment was only to Jill a vacancy, it must be shown, first, that a vacancy existed; and, second, that no mode of filling it was provided.</p> <p>The power of the Governor being exercised, he had no further control over the office until the appointee had been rejected by the Senate.</p> <p>Where the term of an office is fixed by the Constitution, or the statute, the power of removal does not exist in the Executive.</p>