This is a contest between the parties, for the office of District Attorney of the said District, and the questions involved in this case are purely of law.
The defendant, Knickerbocker, who is in possession, of the. office, was appointed by Governor Hahn, on the 12th April, 1864; his commission does not state that the appointment was made with and by the advice and consent of the Senate.
The relator was appointed to th$ same office by Governor Wells on the 7th April, 1865; his commission does not purport that he was appointed with and by the advice and consent of the Senate.
• The appointment of Knickerbocker was made under the Constitution of 1852. The Article 47 of that instrument, alluding to the Governor, reads thus:
He shall nominate, and by and with the advice and consent of the Senate, appoint all officers whose offices are established by this Constitution, and whose appointments are not herein otherwise provided for. Provided, however, that the Legislature shall have a right to prescribe the mode of appointment to all other offices established by law.
Art. 48. The Governor shall have power to fill vacancies that may hap-' pen during the recess of the Senate, by granting commissions which shall expire at the end of the next session, unless otherwise provided for in this Constitution. * * * Arts. 74, 149. District Attorneys were to hold their offices for four years, and the regular term was to commence at a new election on the first Monday of November, 1855.
In conformity with this Constitution, the Legislature enaoted (Revised Statutes, p. 182, ¡¡ 1): That there shall be elected, on the first Monday of November, 1855, and every four years thereafter, in and for each Judicial District in this State, by the qualified voters thereof, one District Attorney, for the term of four years.
Section 3, same book and page: In .case any vacancy should occur by death, resignation, refusal to qualify, or otherwise, the Governor shall fill such vacancy.
T. D. Stuart, the former incumbent, was elected on first Monday of November, 1859, and having died, left a vacancy in the office of District Attorney; and there having been no election held on the first Monday of November, 1863, the office remained vacant and the vacancy was filled by Governor Hahn, without the advice and consent of the Senate, on the 12th April, 1864, in appointing the defendant, Reuben Knickerbocker.
In the interval between the appointment of Knickerbocker, on the 12th April, 1864, and that of the relator, Walsh, on the 7th April, 1865, a session of the Senate intervened, and it is now contended that the commission issued by Governor Hahn to Knickerbocker expired at the end of the next following session of the Senate, and that the office became vacant, and was so at the time when the relator was appointed. Here the question arises, whether the appointment of Knickerbocker was one contem
The appointment by Governor Hahn.was final and absolute, and the appointee was to hold the office until superceded by a successor elected by the people. Constitution of 1864, Arts. 150, 83.
It is therefore ordered and decreed, that the judgment appealed from be affirmed, the appellant to pay costs of appeal..