dissenting. I can not concur in the opinion that there was such.a vacancy in the office, as is contemplated in the general law embraced in section 2606 R. S.
A careful reading of that law will, I think, lead to.the construction, as the only correct one, that the vacancy contemplated is one that occurs by some act or event during a current term and not by the *342expiration of a preceding term, as held by the majority of the court. The expression or phrase, “ for the entire unexpired term of such vacant office,” implies that the office had been properly filled for a part of the term, and by some event had become vacant, making it necessary for some one to be immediately placed in the office, so that the public interests should not suffer.
In this case no such vacancy liad occurred. Under the city charter the defendant was elected Recorder by the City Council for two years from the fourth of April, 1870, and by the same law, as well the State constitution, he was authorized and required to continue to fill the said office until his successor was duly elected and qualified, and that election was, by the law creating the office, committed to the City Council. See act No. 7, extra session of 1870, section 31 and last clause of section 7.
It was by this law made the duty of the Council, not on a particular day, but as soon as practicable, to elect the recorder, who was to hold office for two years, and at the expiration thereof to continue in the discharge of his duties, which the defendant was doing; and he was rightfully doing so by a legal tenure, and hence there was no vacancy to authorize the executive action. The City Council has the right, and it was its duty at the beginning of this second term, to elect a recorder for another two years, but its failure to do so on or before the first day of said second term did not produce a vacancy, for the city charter, creating the office, provided for the contingency. If the doctrine of the majority opinion is correct, the Governor had the right, I think, on the first day of thp second term to make the appointment, provided only his action preceded, by a moment of time, the action which the Council might take on the same day. The law never contemplated any such race or test of speed in filling offices. In my opinion, the Governor had no authority under the circumstances to appoint the relator.
Rehearing refused.