“ When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy by granting a commission, which shall expire at the end of the next session of the Legislature, or at the next election of the people.” (Con., Art. V, Sec. 8.) Under this provision of the Constitution two events must coincide before the Governor is authorized to appoint to an office— there must be both a vacancy and no mode provided by the Constitution and laws for filling “such vacancy.” (People v. Mizner, 7 Cal. 523; People v. Stratton, 28 Cal. 392.)
In this case, assuming that there was a vacancy, notwithstanding the fact that there was a locum tenens authorized to hold till some one else should be duly appointed, (see People v. Whitman, 10 Cal., 43, contra,) was there no mode provided by law to fill such vacancy ? If there was a mode provided, then the Governor had no power to appoint. The Legislature under the statute was the duly appointed body to elect the members of the Board of Directors; but the statute provides that “in case of a vacancy in said Board occurring when the Legislature is not in session, said Board may fill said vacancy until the next assembling of the Legislature, *648and then the Legislature shall proceed to fill said vacancy for the unexpired term only.”
If the vacancy, then, occurred when the Legislature was not in session, the Board of Directors was authorized by the statute to fill it. Holden’s term extended two years “from the passage of this Act;” that is to say, from the 31st of March, 1866. There could be no vacancy in the term commencing from March 31st, 1868, before the advent of that day, for the term itself was not in existence before that day. Suppose the Legislature had elected a party to fill the unexpired portion of Holden’s term, without electing a successor for the next term, there could then have been no vacancy to be filled until the 31st of March, 1868; but at the expiration of the term so filled, to wit: on the 31st of March, 1868, a vacancy would have occurred in the succeeding term, and as the Legislature was not in session on that day, the vacancy thus resulting in that term would have occurred when the Legislature was not in session, and, by the express terms of the Act, the Board of Directors would have been authorized to fill it, for the Act makes no distinction as to the mode in which the vacancy occurs. The language is, “ in case of a vacancy occurring.” This covers any vacancy occurring, no matter how it arises. We can no more say that it is limited to one class of cases than to another. The Board, then, is authorized to fill any “vacancy” occurring when the Legislature is not in session. So, also, had the Legislature adjourned the day before it did, leaving Holden’s unexpired term unfilled, and the Governor (conceding' Ms power to do so) had, on the 30th of March, 1868, made the appointment, it could then only have extended to the 31st of March—the^ balance of Holden’s unexpired term—and another vacancy would have occurred on the 31st of March to be filled again. The Legislature itself could “fill said vacancies for the unexpired term only.” (Stats. 1865-6, p. 513, Sec. 1.) Certainly the Governor could do no more.
That the vacancy in Holden’s unexpired term was not filled by any appointing power cannot affect the question of power *649to fill the vacancy occurring in the subsequent term, when it arose. The Governor could not under any circumstances, before the 31st of March, 1868, have made an appointment for the term commencing on that day. The vacancy in Holden’s unexpired term continued till the expiration of Ms term—no longer. After the expiration of Holden’s term, to wit: on the 31st of March, 1868, a new term commenced, and a vacancy in that term, which could be filled by any power other than by a regular election by the Legislature for the entire term, for the first time occurred. The Legislature adjourned on the thirtieth, and it was not in session when that vacancy in the term commenced. It is therefore clearly, in my judgment, within the express provision of the statute, and the Board was authorized to fill the vacancy till the next meeting of the Legislature. This is the construction, upon the supposition that the word “occurring” is to be construed in the sense of commencing or having its inception when the Legislature is not in session. But it is by no means clear to my mind that it should be so limited. It would be no constrained construction to hold that it was intended to give the Board the power of appointment whenever there is a vacancy and the Legislature is not in session, whether the vacancy commenced in the vacation or during the session, and for any cause the Legislature failed to fill it before adjournment. It seems clear that the Legislature did not intend that a vacancy in this office should be filled by the Governor in any event, but that the appointment should be made by one of the bodies indicated. It provided for filling vacancies both during the session of the Legislature and When not in session, and this covers the whole period of time. The constitutional provision only steps in where no other appointing power is provided; and our predecessors have repeatedly held that the constitutional provision conferring power on the Governor in the cases specified should be strictly construed, when there is any doubt, so as to limit the power of the Governor. (People v. Mizner, 8 Cal. 524, *650525; People v. Langdon, 8 Cal. 15; People v. Whitman, 10 Cal. 46.) I concur in the view taken by Justices Sanderson and Bhodes, that the Governor was not authorized to appoint in this case.
I also concur in the opinion that the defendant is not a usurper or intruder into the office, for the reasons stated by Mr. Justice Sanderson, and that the judgment must be affirmed.