I concur in the affirmance of the judgment.
Nothing is better settled by the decisions of this court) than that there is no vacancy in an office, so long as the person elected or appointed to fill it continues to discharge the duties pertaining to it. The reason why a vacancy cannot occur under such circumstances is, that “ Every officer must continue to discharge the duties of his office, although his term has expired, until his successor is elected and qualified.” (Pol. Code, § 879.)
The power to appoint a police commissioner is not directly conferred on the governor. Therefore, he could not appoint a “successor” of such commissioner, and the incumbent must continue to discharge the duties of Ms office until Ms successor is elected and qualified. Under such circumstances, it has been repeatedly held by this and other courts that there can be no vacancy, because the law declares that the incumbent must continue to discharge the duties of his office until his successor is elected and qualified. The incumbent has no right to deliver the office to any other than a successor so elected. In case of the death, removal, or resignation of an officer, a vacancy occurs, which the governor may fill by appointment, unless the law provides some other way. But the bare expiration of the term of an office does not create a vacancy; and until there is a vacancy the governor has no power to appoint any one to an office, unless such power is expressly conferred on him. (Peo*658ple v. Tilton, 37 Cal. 614; Stratton v. Oulton, 28 Cal. 45; People v. Bissell, 49 Cal. 407.)
Morrison, C. J., concurred.
McKinstry, J., and Ross, J., concurred in the judgment.
McKee, J., and Thornton, J., dissented.
Rehearing denied.