delivered the following concurring opinion:
When this case was first presented I was rather inclined to the opinion that the power of appointment had been well exercised by the Governor, under the peculiar circumstances of the case; but upon further consideration I am- convinced that the appointment of the appellant cannot be sustained.
There is one thing clear, and that is, that it is only a vacancy in the office that the Governor, under the Constitution, is authorized to fill, without the concurrence of the Senate. All that class of civil officers contemplated by the Constitution as being within the executive power of appointment, are required to be nominated to the Senate, and the advice and consent of that body taken, before the appointment is complete. The only exception to this mode of appointment of such officers exists in the case of vacancies that occur during the recess of the Senate, or that may occur within ten days before the final *93adjournment of that body. This exception exists, and is provided for, from the necessity of the case; and it is only in case of a vacancy so occurring, that the Governor has power to fill it without the advice of the Senate, and that simply because such advice and consent cannot reasonably he obtained. The Governor has no power of appointment except as expressly provided by the Constitution or statute; and if he attempt to make an appointment without such express authority, that appointment would simply he without effect. The plain object of the Constitution in this respect is, to secure to the public service officers who shall have the confidence and approval of both the Governor and the Senate; and without this no person can have a right to be inducted into office by virtue of a mere appointment by the Governor, except in cases of necessity before mentioned, and which are expressly provided for; or in cases where, by the law creating an office, the Governor, or some other competent official, may he authorized to make the appointment without reference to the Senate. This is the plain and unmistakable sense and reading of sections 10, 11 and 14 of Article 2 of the Constitution.
Then, the question is, what is a vacancy in office which the Governor is authorized to fill without the advice and consent of the Senate ? And this question can, perhaps, he best answered in a negative way, by showing what is not such vacancy within the meaning of the Constitution.
By section 13 of Article 2 of the Constitution, the term of the office now in question, is, as there prescribed, two years and until the successor of the incumbent shall qualify, according to law. The term of office of the present incumbent, the defendant in this case, commenced on the first Monday of March, 1880, and he was, according to the terms of the Constitution, entitled to hold for the two years, and, in addition thereto, until his successor qualified according to law. This, of course, means that his *94successor shall he duly appointed and qualified; for unless he he legally appointed he could not qualify according to law.
Now it is too clear for question, that the Governor cannot make a vacancy in the office by appointing a successor to the incumbent. The vacancy must actually exist before the power of appointment can be exercised; for it is only the existence of the vacancy that can call into activity the power to appoint. It is equally clear, that if the Governor had not assumed the right to appoint a successor, the present incumbent would still hold the office, with full and complete powers to discharge all the duties in relation to it. The office, therefore, is not vacant.
If, however, it were conceded that the expiration of the two years had in reality produced a vacancy in the office, as contended by the appellant, still, that vacancy occurred, not during the recess of the Senate, nor within ten days of the final adjournment thereof, but during the session of the Senate, and near about a month before its final adjournment ; and therefore the power of appointment could only be exercised, for the filling the office, in the ordinary and usual way, as provided by the Constitution, that is, by nomination to the Senate, and obtaining the concurrence of that body. It would be no such vacancy, under the provision of the Constitution, as the Governor would be authorized to fill without the sanction of the Senate.
But full effect must be given to the terms of the Constitution, that the incumbent shall hold for the term of two years, and until his successor shall qualify according to law. The successor here meant is not the appointee of the Governor alone, who is only authorized to appoint in case of a vacancy actually existing, but the appointee of the Governor by and with the advice and consent of the Senate. In such case as the present, where there is an incumbent, if no successor be appointed as the Constitution provides, that is, by the Governor by and with the advice *95and consent of the Senate, then clearly the incumhent of the office holds on; and he does so, not as a mere defacto officer, hut as a lawful and rightful possessor of the office, by virtue of his original appointment. And being thus lawfully in possession of the office, with full power to execute all of its functions, the Governor has no power to supplant him by the mere appointment of a successor, without the concurrence of the Senate. In such case, no vacancy exists that authorizes the appointment by the Governor alone.
The effect of the words following the express limitation of the term of an office, as in this case, “and until his successor shall be appointed and qualified,” or, “and until his successor shall qualify,” has been the subject of frequent judicial determinations of Courts of high authority, and the construction of those terms has become fixed and settled. They are held to mean, according to their plain import, an extension of the definite term of office, and that no vacancy exists in the office while an incumbent, lawfully appointed, holds by virtue of such extension of his term; and, of course no vacancy existing, no appointment can be made merely to fill a vacancy. The very object of employing such language, in the limitation of the term of office, is to prevent a vacancy occurring before a successor is duly appointed and qualified, as may be provided. The cases so holding are quite numerous, but it is all-sufficient for the present purpose, to refer to the cases of Comm. vs. Hanly, 9 Penn. St., 513; State vs. Lusk, 18 Mo., 333; The People vs. Tilton, 37 Cal., 614; and State vs. Howe, 25 Ohio St., 588.
It would appear from the facts in this case, that the Governor did his duty in nominating a person to the Senate for the office in question; but why such nomination was not acted on does not appear, and of course it is no subject with which this Court can have concern.
I shall, for the reasons I have stated, concur with the rest of the Court in affirming the order of the Court below, denying the mandamus.