The question presented for determination is this: was there a vacancy in the office of Comptroller at the time of the appointment of the relator ?—and this involves the inquiry as to the effect of the commission received by Mandeville.
The twenty-first section of the fourth article of the Constitution provides that “no person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under the State.” To the office of Comp*47troller a salary is attached, and it is, therefore, an office of profit, within the meaning of the terms of the Constitution. If Mandeville held the federal office at the date of the general election, he was, of course, ineligible to the State office. But in no just sense can the tender of a commission be deemed a “holding” of an office. An acceptance of the office by the party to whom the commission is issued is essential, and not merely an acceptance but an actual entry into possession. The case of Marbury v. Madison, (1 Cranch, 137,) is relied upon by the defendant, but it has no application to the facts of this case. It was there decided that the power of the Executive over an officer not removable at will, ceased when the constitutional power of appointment had been exercised, and that the power was exercised when the last act from the President had been performed by annexing his signature to the commission of the officer. There is nothing in this decision which can bear on the question under consideration. To a complete investiture of an office, the acts of the appointing power and of the person appointed must in some instances concur. The appointment is complete when the commission is signed by the President, but it is competent for Congress to require the performance of certain acts by the appointee, such as the execution of security, the taking the oath of office, and the like, before he can enter upon the possession of the office. This has been done in relation to the office of Surveyor-General. The appointee is required to give a bond and take an oath before he can possess the office. The performance of these acts are conditions precedent to the “holding” of the office. (U. S. v. Le Baron, 19 Howard, 78.) These acts were not performed by Mandeville when the general election in 1857 took place, and he was not, therefore, at that time ineligible to the State office. The votes cast for him were properly counted, and by them he was duly elected Comptroller.
As we hold that Mandeville was eligible, we refrain from the expression of any opinion whether, if he were ineligible, the votes given for him should be thrown out as so many blanks, and Whitman declared elected, as contended by counsel. Much argument may be had against the propriety of a rule which would, in a popular government, give an office to a person who was clearly not the choice of the people, as shown by the election. (See State of Wisconsin v. Giles, 1 Chandler, 117; opinion of the Judges of the Supreme Court of Maine, in answer to the questions propounded by the Governor, 38 Maine Rep., 597.)
The question then recurs, was there a vacancy in the office at the time of the relator’s appointment ? Mandeville, by his election, had a right to the office, but he never qualified or claimed it. He accepted the appointment under the federal government, and continued in office under that appointment until after the expiration of the period within which he was required to qualify *48as Comptroller. It is unnecessary to express any opinion whether, had Mandeville resigned the federal appointment before he was required to qualify as Comptroller, he could have taken possession of the State office. It is sufficient for the disposition of the present ease, that he continued to hold the office of Surveyor-General. That holding operated as a resignation of his right to the State office. The rule as to inconsistent offices is, that the acceptance of one is a relinguishment of the right to the other. The failure of Mandeville to qualify created a vacancy in the office for the term for which he was elected. This vacancy the Governor, by the Constitution, was authorized to .fill by appointment.
But it is urged, by the distinguished counsel of the defendant, that there could be no vacancy, because Whitman was the legal incumbent of the office at the time of the relator’s appointment, and the opinion of the late Chief Justice, in People v. Wells, (2 Cal., 204,) that a vacancy can only be said to exist when the office has no legal incumbent to discharge its duties, is cited as conclusive of the position. The existence of an incumbent and a vacancy in the same office, at the same time, is only impossible when the office is of the same term. There is one office, but there are different terms in which it is to be held. It may be filled for one term, and vacant for the succeeding term. It is the evident intention of the Constitution that certain State offices shall be filled by periodical elections by the people, recurring at stated intervals, but in case they remain unfilled from any cause, that temporary appointments shall be made by the Governor, which shall expire at the first subsequent general election, when the earliest action of the people on the subject can be invoked. The Constitution limits the term of the office of the Comptroller to two years, but that there may be no interregnum between the expiration of his term and the entry of his successor, it also provides that he shall hold until his successor is qualified. That successor is to be designated in one of two ways : in the first instance, the designation is to be made by the people, but if that fails to fill the office, then the designation is to be made by the Governor. There is no difference between a vacancy occasioned by the failure of the person elected to qualify, and a vacancy occasioned by his resignation immediately after qualifying, if any other view could be sustained, it would follow that Whitman would hold for the entire term for which Mandeville was elected, and though acknowledged to be an able and efficient officer, the construction, once adopted, would in other cases lead to the most deplorable results. For many of the most responsible and important offices in the State there can be no election, except to fill a vacancy, or for a full term, and if a vacancy can not exist by a -.failure of a person to qualify, whether such failure arise from death, acceptance of an appoint*49ment under the federal government, or resignation in advance of the right to the office—and the reasons assigned in the present case will apply to any of these causes—it would often happen that weak and incompetent men, for whom not a vote could be obtained from the people, would retain for long terms positions of great trust and power, to the serious detriment of the public interests. “ If such must be the inevitable consequence of the rule ” contended for by the defendant, “ it is evidently the duty of this Court,” to use the language of the late Chief Justice, in the case of the People v. Reid, (6 Cal., 290,) “ to adopt such a construction as would carry out the plain intendments of the Constitution, which are in favor of the election of officers by the popular vote.”
Whitman was the legal incumbent only of the office of his own term, which was prolonged that no interregnum might exist by reason of the vacancy in the office for the term for which Mandeville was elected. That vacancy ceased by the appointment and qualification of the relator, who thereupon became entitled to take possession and enter upon the duties of Comptroller.
The above was written some weeks since, and handed to my associates, who have arrived at a different conclusion. After a careful perusal of their opinion, I do not perceive any reason for changing the views I had previously expressed. The construction adopted by my associates appears to me to be in conflict with the former decisions of this Court, the spirit of the Constitution, and the statutes of the State. (People v. Mott, 3 Cal., 502 ; People v. Reid, 6 Cal., 288, Act concerning Offices, § 30.)