I do not think there is any substantial conflict in the provisions of the different parts of the code bearing upon the question. But if there is, the legislature, in the code itself, has prescribed the rule by which such conflict must be settled, and by which it must be determined which provision must prevail. (Pol. Code, secs. 4481, 4482, 4483.) Acting upon that rule, the questions stated in the prevailing opinion must be resolved by the provisions of chapter 3, title 1, part 3, of the Political Code. The office contended for here is one of those included in the section of this chapter giving the number and designation of the civil executive officers of the state. (Section 343.) Sections 368 and 369 are also a part of the same chapter. The former provides that this officer shall be “appointed by the governor, with the consent of the senate,” and the latter provides that his term of office shall be “during the governor’s pleasure.” The provisions of the code which are claimed to be in con*456flict with these are found in title 6 of this part,—a title on an entirely different subject-matter, and into which it was not necessary to interject anything on the subject of the appointment or tenure of these officers. There we find, in section 2440, that these commissioners are to be appointed “by the governor, by and with the advice of the senate,” and in section 2442, that they shall “hold during the pleasure of the power appointing them, not exceeding four years from the date of their commissions.” While there is a slight difference in phraseology, there is none in legal effect; but if there was, the first, and not the last, must prevail, according to the rule prescribed by the code itself.
I fully agree that it is more important that there should be a settled and established rule for the guidance of those exercising the power of appointment and removal than it is that the office should for the time being be awarded to any particular person; but it seems to me that we had such a settled and established rule, and that such a rule was for the first and only time unsettled by the decision of this court in the case of People v. Freese, 76 Cal. 633, now cited and relied upon as stare decisis. Under language more favorable to the contention of respondent than that used in either of the provisions of our code, it has been settled in the United States for more than one hundred years, by both legislative and judicial construction, that the power of removal was vested in the executive alone. (See Marshall’s Life of Washington, 196; Sergeant’s Constitutional Law, 372, 373; Ex parte Hennen, 13 Pet. 230; United States v. Avery, Deady, 204-215; McElrath v. United States, 12 Ct. of Cl. 201; Commonwealth v. Bussier, 5 Serg. & R 451.) In this state, as early as People v. Hill, 7 Cal. 97, it was held that the power to remove is incident to the power to appoint, and that the only way in which this power of removal can be limited is by first fixing the duration or term of office. It cannot be questioned that *457the power of appointment is in the governor; the senate may approve or not, but it cannot appoint. The only time in the history of the state, so far as I have been able to discover, where the power of the governor to remove an appointee of the executive, even though the appointment had been confirmed by the senate when there was no fixed term of office, has been questioned, was in the case of People v. Freese, 76 Cal. 633.
I do not, therefore, think that we ought to accept, upon the principle of stare decisis, a decision which unsettles a rule of construction and of practice, in both the nation and the state, as old as the government itself.
I am not unmindful of the fact that several cases are cited in the opinion referred to, claimed to be in support of the rule there announced; hut every case so cited, except- one, was in relation to an office to which there was a fixed term attached. The exception was in the case of a local office, where it was held that the governor had never been vested with power to appoint. Not one of them is a case where the officer held, as here, “at the governor’s pleasure,” or “at the pleasure of the appointing power.”