concurring specially.
I concur in the views expressed by Mr. Justice Currey, and add a suggestion upon one point. The relator claims the position under an appointment from the Governor, who assumed to act under Section eight, Article V, of the Constitution, which authorizes the Governor to make an appointment, “ when any office shall become vacant, and no mode is provided by the Constitution and laws for filling such vacancy.” *392But the Act of 1861 gives the appointing power to the Board of Trustees; hence there is a mode provided bylaw for filling any vacancy that may exist. This Board could at all times, and still can, at its own pleasure, meet and appoint a Librarian. This body is still in'existence, and nothing but the volition of the members can for a moment delay an appointment. It matters not that it does not adjourn from day to day, for it can meet at any time irrespective of adjournments. Had the Board met and failed to elect, and then adjourned for an hour to consider the matter, or for any other purpose, I apprehend that no one would claim that the Governor could, during the recess, fill the vacancy, and thus take the appointment out of the hands of the regularly authorized appointing power. Yet the functions of the body authorized by law to fill the vacancy are no more suspended now than they would be during the recess of an hour, because th,ey can meet at any moment when it suits their convenience or pleasure to do so. The case might be otherwise, where the body, when once dissolved, could not be re-organized except at the will or call of another not a member—such as the Legislature. Such were the cases of People v. Baine, 6 Cal. 510; People v. Reid, 6 Cal. 289; People v. Mizner, 7 Cal. 522. The reason in that instance is, that the body when once adjourned sine die, so far as its own volition is concerned, is incapable of performing any further functions. There was then a mode of filling the vacancy provided by law in existence at the time the appointment of the relator was made, and the conditions upon which the Governor was authorised- to act did not exist.
These views are supported by the cases of People v. Fitch, 1 Cal. 536 ; People v. Mizner, 7 Cal. 523.