The sense in which the term “vacancy,” as applied to an office, is used in all legislative enactments in which a different meaning or intention is not in direct terms declared, must be deemed such as is defined by the Legislature itself in the general Act concerning offices. (Section 30 of Act of 1851, Stats. 1851, pp. 419, 420; Section 23 of substituted Act, approved April 22d, 1863, Stats. 1863, p. 389.)
The term “vacancy,” as defined by the Legislature in the sections above referred to, clearly applies to such terms of office as have been entered upon by an incumbent, who, for some cause during his term, has ceased to occupy the office; or to terms of office, the incumbent for which has been legally designated by election or appointment, and fails to qualify and enter upon its incumbency. Such is the legislative sense and meaning of the term. The constitutional meaning of the term “vacancy,” is more comprehensive, as used in Article Five, section eight; it not only includes vacancies in terms of office which have been partially filled by an incumbent, and such terms of office as have had no incumbent de jure, by reason of the failure of a duly selected incumbent to qualify and enter upon the same, but includes all offices and terms of office, constitutional and statutory, having no de jure incumbent, either by reason of a statutory vacancy or by reason of the existence of an office or term of *651office, for the incumbency of which no person has been legitimately designated.
An office, either constitutional or statutory, may exist as a legal entity, disconnected with and independent of an incumbent of the same de jure or de facto, and the time of such' existence is dependent alone upon the power creating the office, which creating power may, as it most generally does, divide its existence into periods or terms, with fixed dates as to commencement and termination, or into terms with fixed periods as to extent of duration, without reference to date or exact time of commencement or termination. So a term may exist as a legal entity and constituent or integral part of an office, disconnected with and independent of an incumbent of such term, and—as in some exceptional cases —it may exist for an indefinite period, or during the pleasure of the power or authority authorized by the organic Act to designate or appoint the ocffier.
The power creating an office may immediately select the officer for the whole or a limited period of its existence, and may, and most generally does, merely create the office, define its duties and prescribe the mode of selecting the officer for the successive terms or periods of its existence, and may? and usually does, provide a mode for supplying an officer in case the primary mode provided should partially or wholly fail to accomplish that result for the entire term.
A neglect or failure to employ the primary means for the selection of the officer prescribed by the organic law, is rarely, if every contemplated by the framers of the law creating the office; hence no provision is made for such a con. tingency. ' If our Legislature ever contemplated such a contingency, it has failed to recognize its possible existence by any statutory provision to meet it, but has left it to be met by the constitutional provision contained in section eight of Article Five.
A vacancy in an office, or term of office, contemplated by the statute, has reference to and is immediately connected with an incumbent who has entered upon the office, or a duly *652selected incumbent of such office or term of office; and such statutory vacancy exists when an incumbent of an office or term of office, by failing to occupy his fall term, leaves a portion thereof unsupplied by an officer, or when a duly selected incumbent for a full or fractional portion of a term, fails to qualify and enter upon the term for which he was selected, and thereby such term is unsupplied with an officer, and vacant in the statutory sense.
In the present case, the law creating the offices of Directors of the Insane Asylum selected and appointed seven persons, as officers and incumbents of said offices, to constitute a Board of Directors, and provided that, of the seven persons so selected, the first three named in the Act should go out of office at the expiration of two years from the passage of the Act, and the fourth, fifth, sixth, and seventh named should go out of office at the expiration of four years from the passage of the Act; that the successors of the persons so named should be elected by the Legislature in Joint Convention, and that the terms of office of such successors should' be four years; and further provided, 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 assembling of the Legislature, and then the Legislature shall proceed to fill said vacancy for the unexpired term only.” (Section first of the Act concerning Insane Asylum, as amended March 31st, 1866, Stats. 1865-6, p. 513.) By this statute the office of Director of the Insane Asylum is divided into terms commencing at a definite time or» date, and the duration of each term is fixed and definite. The commencement of the terms of all of the Directors named in the Act is on the 31st of March, 1866, and the term of the first three persons named in the Act as Directors, to wit: E. S. Holden, Austin Sperry, and A. J. Spencer, is limited to two years from that date, and the subsequent terms of the same officers is fixed at four years. Ho provision is made by the law for supplying an incumbent for a full term, except by the Legislature in Joint Convention, and no provision is made for any *653vacancy which may occur by reason of the failure of the Legislature to select an incumbent for such term. The only vacancies provided for have reference to and are dependent upon a pre-existing incumbent of a portion of an unexpired term, or to a selected incumbent for a term who may fail to qualify and enter upon the same—such vacancies only as are included in the statutory definition of the term “vacancy,” as illustrated and defined by the twenty-third section of the Act concerning officers, hereinbefore referred to.
The term of office upon which E. S. Holden entered extended from the 31st March, 1866, to the 31st March, 1868. Upon his resignation on the 8th February, 1867, a vacancy occurred for the residue of the term upon which he had entered, and such vacancy occurring when. the Legislature was not in session, the Board of Directors, composed of its remaining numbers, were by the terms of the Act authorized to select an incumbent for such portion of Holden’s term only as intervened between his resignation and the meeting of the Legislature on the first Monday of December, 1867, at which time it devolved upon the Legislature to supply an incumbent for the residue only of the two years’ term upon which Holden originally entered. It appears from the record that the Board performed its duty and appointed respondent to the office vacated by Holden. The Legislature met on the first Monday of December, 1867, and continued in session till the 30th March, 1868, without having selected an incum bent for the un expired portion of Holden’s term, or an incumbent for the full term succeeding that upon which Ilolden originally entered. It seems clear that by reason of such non-eléction of the Legislature, a vacancy, as defined by statute, existed in the term upon which Holden originally entered, from the first Monday in December, 1867, to the 31st March, 1868; and after the 31st March, 1868, a vacancy existed in the term succeeding Holden’s term, which no statutory law has provided for filling during the recess of the Legislature. This was a vacancy not contemplated by any statute, and clearly not falling within the legislative *654definition of the term, “vacancy,” but within the more comprehensive terms of section eight of Article Five of the Constitution, which confers upon the Governor the authority and makes it his duty, “when any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, 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.” In the performance of this duty appellant was commissioned by the Governor to fill the. vacancy occasioned in the Board of Directors, by the failure of the Legislature to provide an incumbent for the full term succeeding Holden’s two years’ term, and by virtue of this commission, and his qualification thereunder on the 10th day of July, 1868, appellant was clearly entitled to enter upon the duties of Director, and from thence hitherto and now is so entitled; and respondent, from said 10th day of July, 1868, has had no legal claim or light to act as one of the Directors, or as a member of the Board of Directors of the Insane Asylum. I am, therefore, of opinion that the order of the Court sustaining the demurrer to appellant’s complaint, and judgment thereon against him, ought to be reversed and cause remanded.