Terry, C. J., concurring.
The defendant was duly elected Comptroller at the election of 1855; and, within the time required by law, qualified and entered upon his office, which he has continued to hold ever since. At the election of 1857, the defendant and J. W. Mandeville were candidates for the office—the latter receiving the highest number of votes. On the 16th day of August, 1857, Mandeville received from the President of the United States a commission of Surveyor-General of California, took the oath of office on the 6th of September, entered upon his office on the 9th, and notified the proper department at Washington of his acceptance of the commission on the 15th. The election took place on the 3d of September; and Mandeville never qualified or claimed the office of Comptroller. On the 28th of April, 1858, the Governor, regarding the office as vacant, appointed the relator, and the appointment was confirmed by the Senate. The relator, having properly qualified, demanded possession of the office, which demand being refused, he brings this suit.
The only question presented for determination is, whether there was a vacancy in the office at the time of the appointment of the relator. And this question involves the consideration of two points:
1. Was Mandeville disqualified at the time he received the highest number of votes for the office ?
2. Conceding-that Mandeville was eligible, is the defendant entitled to hold the office until his successor is elected and qualified?
In considering the first point, it must he conceded that the office of Surveyor-General is a “lucrative office,” and the office of Comptroller an “office of profit,” under the twenty-first section of the fourth article of the Constitution of this State. It must also be conceded, that if Mandeville held the federal office at the date of the general election in 1857, he was ineligible to the State office. But to constitute the “holding” of an office within the meaning of the Constitution, there must be the concurrence of two wills—that of the appointing power and that of the *44person appointed. If the mere tender of a commission could produce this result, then it would he in the power of the President to disqualify any person from holding a State office without his consent. So far as regards the act of the appointing power, the appointment is complete when the commission is duly issued by the President; but Congress has required the performance of certain acts by the appointee before he can enter upon the discharge of the duties of his office. The person appointed to the office of Surveyor-General is required to give a bond and take an oath before he can possess the office. These acts constitute conditions precedent to the holding of the office. (United States v. Le Baron, 19 Howard, 78.) These acts were not performed by Mandeville when the general election took place in 1857, and he was eligible to the State office when the votes were cast for him. Had he afterwards qualified as Comptroller, and not as Surveyor-General, there could have been no doubt as to his right to hold the State office.
The decision of the Supreme Court of the United States in the case of Marbury v. Madison, (1 Cranch, 137,) is not opposed to this view. In that case, it was held that the power of the Executive over an officer not removable at will, ceased the moment the power of appointment had been exercised; and that the power was exercised when the last act of the President had been performed by annexing his signature to the commission.
If these views be correct, Mandeville was eligible, and was duly elected Comptroller; and, as a matter of course, the defendant was not re-elected to the office, and can not claim to hold it on that ground.
We come now to the consideration of the second point. By the second section of the fifth article of the Constitution of this State, it is provided that “the Governor shall he elected by the qualified electors, at the time and places of voting for Members of Assembly, and shall hold his office two years from the time of his installation, and until his successor shall be qualified.”
This language is exceedingly plain and explicit. The Governor holds his office for two years, and also holds Ms office until his successor is qualified. The term of the office is fixed at two years, certain, with a contingent extension. When this contingency happens, this extension is as much a part of the entire term as any portion of the two years. The language of the Constitution is just as clear and express that the Governor shall hold his office until his successor is qualified, as it is that he shall hold it two years from the time of his installation. These two provisions are both contained in the same sentence, closely connected by the copulative conjunction; and both relate to the term for which this officer shall hold his office. (Com. v. Hanley, 9 Barr, 513.)
But the provisions of the sixteenth and seventeenth sections *45of the same article most clearly sustain this view. Under the provisions of the latter section, the duties of the office devolve upon the Lieutenant-Governor, in case of the impeachment, removal, death, inability, resignation, or absence of the Governor. And by the sixteenth section it is provided that “if, during a vacancy of the office of Governor, the Lieutenant-Governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office, or shall be absent from the State, the President of the Senate shall act as Governor until the vacancy be filled or the disability shall cease.”
The Constitution itself clearly defines the sense of the phrase “vacancy of the office of Governor,” as used in the sixteenth section, by specifically enumerating, in the succeeding section, the instances which devolve the duties of the Executive upon the Lieutenant-Governor. It will be seen that all the instances mentioned are such as can only occur after the term of the Governor has commenced to run. It is only after the installation of the particular incumbent that any one of these contingencies can happen. And the very same contingencies which devolve the duties of Governor upon the Lieutenant-Governor, will devolve them upon the President of the Senate in proper cases. When the Constitution clearly enumerates the events that shall constitute a vacancy in a particular office, we must suppose all other causes of vacancy excluded; especially when this construction can lead to no injurious consequences. Even when a statute assumes to point out certain exceptions to a general rule of its own, a Court can not say that other exceptions were intended, though not mentioned. (Lee v. Evans, 8 Cal. Rep., 431.)
This construction makes the different provisions of the Constitution consistent and harmonious, and renders it most improbable that the office of Governor should ever be without an incumbent. If the Governor elect should fail to qualify, from any cause, the Governor would hold over until his successor be elected and qualified. So of the Lieutenant-Governor, as his term of office is the same. (Article 5, section 16.) And by the provisions of section eighteen, of the same article, the manner of electing a Comptroller, and the term of his office, are the same as are prescribed for the Governor and Lieutenant-Governor. If the Comptroller elect fail to qualify, from any cause, the Comptroller holds over until his successor is elected and qualified. If the failure of the Governor elect to qualify creates no vacancy in the office, but a mere extension of the term of the particular incumbent, neither does such a failure on the part of the Comptroller elect create a vacancy in that office.
But the construction we have given the Constitution is not only supported by the language of the instrument, but by its general scope and spirit. The executive officers are elected by the people, and under an elective system it is more proper that *46these officers should hold over than that the duties should devolve upon those in whose selection the people have had no voice. It is only in cases where there is no incumbent of the particular office to hold over, that the system will allow the appointment of the Executive to fill the office. Our Constitution, whether wisely or unwisely it is not our province to determine, has studiously restricted the patronage of the Governor. (The People v. Mizner, 7 Cal. Rep., 524.) In this case we have to decide between the choice of the people and the appointee of the Executive.
It is contended that if the defendant can hold over until the election and qualification of his successor, that then he must hold for another full term. But is this true ? The Constitution provides that the executive officers, except the Secretary of State, shall be elected at the time and places of voting for members of Assembly. It is true that the “Act concerning Officers” (Wood’s Digest, 557, sections 2 and 5,) provides that these officers shall be chosen at the general election of 1851, and every second year thereafter. But this provision can not change the Constitution, by annexing restrictions to that instrument which impair the right of the qualified electors of the State to choose their own officers. These officers hold for two years from the time of their installation in office, and until their successors are qualified. There is no fixed day upon which the term must commence and end. The event upon which this depends is contingent, and may happen at a later period in each year. The term must run two years, and may begin later in the year, at the commencement of each new term. (The People v. Langdon, 8 Cal. Rep., 1.) The case is different with respect to District and Supreme Judges. They hold their offices from a day certain, and for a fixed period, and not until their successors are qualified. (Article VI, sections 3 and 5.)
Our conclusion is, that the defendant is entitled to hold the office until his successor is elected and qualified, and that this successor may be elected at the general election of the present year, and when qualified will hold his office for the term of two years, and until his successor be qualified.
Judgment reversed, and the case of the relator dismissed.