I dissent. The Attorney General, who supports the respondent herein, issued a formal opinion (57 Ops.Cal.Atty.Gen. 615 (1974)), in which he pointed out that “the Constitution limits the term of office to six years. Where the term is so prescribed, the appointing power cannot enlarge it by issuing a commission in which a greater term is named.”
That statement would seem to be so inherently logical as to require no further discussion. Nevertheless my colleagues indulge in some remarkable legal legerdemain by which a terminating six-year constitutional term is miraculously extended to eight years. And with the same magic wand, mirabile dictu, they cause a new six-year term which appeared on the county voters’ ballots in June 1974 to self-destruct. Then, to compound the havoc, the majority disapprove three Attorney General’s opinions which, since 1959, have properly advised administrations of both political parties.1
The majority begin with a misconception: they assert “a vacancy in a superior court judgeship is a vacancy in an office, not a vacancy in a term.” {Ante, p. 739.) Their error is immediately evident upon reading article VI, section 16, subdivision (c), of the Constitution: “Terms of judges of superior courts are 6 years beginning the Monday after January 1 following their election. A vacancy shall be filled by election to a full term at the next general election after the January 1 following the vacancy but the Governor shall appoint a person to fill the vacancy temporarily until the elected judge’s term begins.” (Italics added.) The word term is used three times in the two sentences of the section; the word office nowhere appears in the section.
Therefore we must analyze the terms involved, bearing in mind that no superior court term may extend beyond the six years provided in the Constitution.
There are two separate and distinct terms with which we are here concerned. The first is the term of Judge Staats, which began in January 1969 and was required to terminate on January 5, 1975. There is no event *742which could possibly extend his constitutionally created six-year term beyond six years. The term was not extended beyond the constitutional limit by Judge Staats’ resignation, by Judge Sherman’s appointment, by Judge Sherman’s resignation, by Judge Sherman’s death or by this petitioner’s appointment. The term could not be extended beyond six years if a new appointment were purportedly made every day up to and including January 5.
The second term involved was that for which the electorate made a democratic choice at the polls in June 1974, the actual term to begin on January 6, 1975. Nothing that occurred prior to Januaiy 6 could abolish, alter, or impose any burden whatever on the institution of the new term.
When Judge Sherman, duly elected by the people of his county in June, died and was thus unable to take his oath of office on Januaiy 6 for the new term, a vacancy occurred in that new term. That vacancy exists today and can now be filled temporarily by the Governor until “the next general election after the January 1 following the vacancy.” That will be the general election of 1976.
The majority cite only one case which gives them any comfort, French v. Jordan (1946) 28 Cal.2d 765, 769 [172 P.2d 46]. The language in French is pure dictum, unnecessaiy to the opinion, since the issue there was whether the judgeship involved should be included on a November ballot after the election forces were already spent in the June primaiy. And if it is not dictum, the language in the opinion conflicts with the current constitutional provision. Persuasive authority to the contrary, not cited by the majority, is 36 Ops.Cal.Atty.Gen. 77 (1960).
The fallacy of the majority analysis and result is illustrated further in my dissent to the companion case, Zecher v. Cory, post, page 743 [119 Cal.Rptr. 885, 532 P.2d 1253].
I submit that the appropriate rule for this case is that no vacancy can exist in a judicial term until that term actually comes into existence, here January 6, 1975. Thus this petitioner could only complete the remaining days of Judge Staats’ unexpired term. He could not be appointed to fill a vacancy which had not yet occurred in a term which was not yet in being.
I would deny the petition.
57 Ops.Cal.Atty.Gen. 615 (1974); 36 Ops.Cal.Atty.Gen. 77 (1960); 33 Ops.Cal.Atty. Gen. 1 (1959).