By the express terms of the Act the Board is only authorized to fill a vacancy which occurs during the recess of the Legislature, and “ until the next assembling of the Legislature.” Holden having resigned during his term, the Board appointed the respondent to fill the vacancy. By the very letter of the Act this appointment ceased on “the next assembling of the Legislature,” which was on the first Monday in December, 1867. From the moment that the Legislature assembled, the office was vacant, and the Legislature had the power to fill it for the unexpired portion of the term. This must be conceded on all sides. The fact that the respondent was *655authorized to discharge the functions of the office until Ms successor was elected and qualified, does not prove that the office was not vacant. He continued only as a locum tenens, and to prevent an injury to the public interests. But the office was vacant nevertheless; otherwise the Legislature would have had no power to fill it. This is too plain to require discussion. As soon as the Legislature assembled, the office, eo inslanti, became vacant, and so continued during the remainder of the session, the Legislature having failed to fill it. Indeed, it has ever since continued to be vacant, unless the appointment of the appellant by the Governor was a lawful and valid act. Ho one else has attempted to fill it. The Legislature failed to do it, and the Board has not attempted to do it. We have, then, the case of a vacancy which did not occur “ when the Legislature is not in session;” but, on the contrary, which occurred when it was in session, or cotemporaneously with its assembling. It is quite certain it did not occur when the Legislature was not in session. It is equally certain the Board exhausted its power of appointment, in respect to the unexpired portion of Holden’s term, when it appointed the respondent to fill the vacancy. The statute defines with precision the limit to this appointment in these words: “Said Board may fill said vacancy until the next assembling of the Legislature.” The office, therefore, became vacant when the Legislature assembled, and neither the Legislature nor the Board attempted to fill it. It is quite evident the Board had no power to fill it during the session of the Legislature, on which body that duty is specially devolved by the statute. But it is said that a vacancy for a new and full term commenced on the day after the Legislature adjourned, and that this second vacancy occurred when the Legislature was not in session, and that by the express letter of the Act such vacancies are to be filled by the Board, and cannot be filled by the Governor. If an office be once vacant, and there is no subsequent attempt to fill it, I do not clearly understand how the vacancy can be subdivided into terms, so as thereby to create *656several vacancies instead of one. It is a misapplication of terms to say that one vacancy ends and another begins in the same office, when it has been continuously vacant from the time when a vacancy first occurred. A vacancy in an office begins when there ceases to be an incumbent to fill it; and it continues so long as there is no incumbent. It may continue for a portion or the whole of a term, or for several terms; but so long as it continues without interruption, it is but one vacancy and not several, though it may extend'over several terms. To say that a new or another vacancy has occurred in an office which before and at the time was vacant, appears to me to be an abuse of terms. It would seem to be a self evident proposition that a continuous vacancy, extending over several terms, is but one vacancy, and not several; and that it would be incorrect to designate the commencement of each successive term as the beginning of a new vacancy in the office. The office was vacant all the time, though there were several terms to have been filled, and the vacancy commenced when there first ceased to be an incumbent.
The vacancy in this office commenced on the first Monday of December, 1867, on the assembling of the Legislature, and did not therefore occur when the Legislature was not in session. The Board, therefore, had no power to fill it, and the Legislature failed to fill it, either for the unexpired term of Holden or for the new term. On the adjournment of the Legislature, the office being vacant, and there being no provision of law for filling it during the recess of the Legislature, the case is one of those included in section eight, Article Five, of the Constitution, which authorizes the Governor to appoint.
I am convinced that it was not intended by the statute to confer the power of appointment on the Board, under the facts which appear in this record. The Legislature reserved to itself the appointment of the Board of Directors; conferring on the Board the power to fill vacancies in its own body, “occurring when the Legislature is not in session” *657and “until tho next assembling of the Legislature.” It is evident the Legislature intended to keep the Board of Directors within its own control as far as practicable, and hence it conferred on the Board a very limited power of appointment in filling vacancies. It was only permitted to fill those occurring during the recess of the Legislature, and then only until the next Legislature should assemble. It is not in the least degree probable that it was intended to delegate to the Board the power to fill a vacancy which existed when the Legislature was in session, and which was to extend over a new term to commence on the day after its adjournment, and which the Legislature itself, as we may reasonably infer, intentionally omitted to fill.
In my opinion the demurrer to the complaint ought to have been overruled.