In the case of People ex rel. Schoaff v. Parker, decided at the present term, I have discussed the general propositions which, in my opinion, are decisive of this action. But it is claimed on behalf of the respondent, that the Act providing for the appointment of Harbor Commissioners contains a provision which distinguishes this case from those that have preceded it, and establishes that, by the very terms of the Act, the respondent is entitled to hold the office until his successor is elected, commissioned, and qualified in the manner therein designated; that is to say, by the Legislature in Joint Convention • assembled. The argument is, that inasmuch as the office of Harbor Commissioner is a mere creature of the statute, the Legislature had the power to declare what should be deemed a vacancy, and how and when it should be filled; that it has expressly reserved to itself the power of appointment in respect to the office in contest, and having duly appointed the respondent, who was therefore rightfully in office, he will continue rightfully in office until the Legislature shall elect his successor. In other words, that the office is not vacant, notwithstanding the term for *628which the respondent was appointed has expired, and the Legislature has failed to elect his successor. The provision relied on in support of this proposition is as follows: “ Each of said Commissioners shall hold his office for the term of four years, and until his successor is elected, commissioned, and qualified, as in this Act 'provided.” The Act provides for the election of three Commissioners—one by the Legislature in Joint Convention; one by the qualified electors of the State at a general election, and one by the qualified electors of the City and County of San Francisco at a municipal election. The respondent was elected by the Legislature, for the term of four years, commencing November 4th, 1864. His term, therefore, expired November 4th, 1868, and the Legislature having failed to elect Ms successor, the office became vacant, unless the provision above quoted has the effect to continue him in office, not merely as a locum ienens, but as a rightful incumbent, de jure, of the office, until the Legislature shall see fit to elect his successor. If the argument in behalf of the respondent be sound, it follows as a logical result that if each successive Legislature for the next twenty years should fail to elect his successor, the respondent, during all that period, would be the rightful incumbent, de jure; holding the office not as a locum ienens, but by force of the statute, and that no vacancy had occurred which could be filled by an appointment by the Governor. In this method, by simply failing or refusing to elect a successor, the same person, without any new appointment, might be continued in the same office indefinitely, notwithstanding the Constitution, in Article Eleven, section seven, provides that the duration of any office not fixed by the Constitution shall never exceed four years. In this method, the Legislature might accomplish by indirection what it had no power to do directly. The same result might be accomplished by the factious opposition of a bare majority of either branch of the Legislature, in refusing to go into Joint Convention for the purpose of electing a successor to the incumbent. We may suppose a ease, in which a large majority of the Legis*629lature would desire to elect a successor to an obnoxious incumbent of an important office, whose term had expired, or was about to expire, and yet a bare majority of either House might, on this theory, continue the incumbent in office indefinitely, against the wishes of a majority of the Legislature, and in palpable evasion of the constitutional provision limiting the term of office to four years. It is no answer to this proposition to say that the Legislature has the power to re-elect the incumbent to the same office as often as his term expires, and may thus keep him in office as long as it sees fit. The latter, I concede, is a legitimate exercise of power under the Constitution. But in electing an officer, his fitness and qualifications for it come under discussion, and his election is the result of the final action of a deliberative body, whose duty it is to examine and pass upon his fitness for the place. There is an opportunity for discussion and the introduction of evidence in respect to the propriety of the appointment.
The Constitution, therefore, for good reasons, has not prohibited to the Legislature the power to reappoint the same person to the office on the expiration of his term. But a reappointment by a majority of the Legislature in Joint Convention, after an opportunity is afforded for discussion and inquiry, is quite a different affair from- continuing the incumbent in office by a mere refusal or failure to act, when there is no opportunity for either discussion or inquiry, and particularly if the legislative will is thwarted and its failure to act is produced by a refusal of a bare majority of either House to go into Joint Convention; which refusal may be solely for the purpose of continuing the incumbent in office. In this method, so long as a bare majority of either House saw fit to do it, it might retain in the office an obnoxious incumbent, in flagrant disregard of the wishes of a majority of the Legislature, and in plain violation of the spirit if not the letter of the Constitution. If the Act for the appointment of Harbor Commissioners can be so construed as to *630authorize this result, it is to that extent in violation of that clause of the Constitution to which I have referred.
The term of the office was four years, and under the Constitution it was limited to that duration. The Legislature had the power to re-elect the respondent on the expiration of his term; but it had no authority, under the Constitution, to continue him in office beyond the four years without a re-election, except as a mere locum tenens, to avoid an interregnum in the office. In the absence of any provision to that effect in the statute, he might have discharged the duties of the office, as locum tenens, until his successor was appointed. This right he would have had at common law, without the aid of the statute. But the office would be vacant, nevertheless, and subject to be filled by the appointment of the Governor, if there was no other method designated by law. This branch of the subject I have discussed fully in People ex rel. Schoaff v. Parker, and it is unnecessary to repeat th'e argument here. In my opinion the judgment ought to be reversed