Opinion
Argued March 8, 1972
May 5, 1972.
Constitutional law — Gubernatorial appointments — Equity — Quo warranto — Parties — Standing to sue — Constitution of Pennsylvania, Article IV, Section 8 — Senate approval — Recess of Senate — Joint resolution — Words and Phrases — "Happen" — Vacancy — Constitutional interpretation — Expiration of appointment.
1. A member of the Pennsylvania Senate has a special interest giving him standing to bring a quo warranto action challenging the right of a person to hold public office when it is charged that Senate approval of the appointment of the officer is required and was not obtained. [246-7]
2. The Constitution of Pennsylvania, Article IV, Section 8, authorizes the Governor during recesses of the Senate to fill vacancies happening in offices to which he appoints, without the usual approval of the Senate. [247]
3. The Pennsylvania Senate is properly recessed by joint resolution with the Pennsylvania House of Representatives although the House of Representatives concurred in such resolution forty-five minutes after Senate adjournment. [247-8]
4. A vacancy in a nonjudicial office continues to "happen" within the meaning of the Constitution of Pennsylvania, Article IV, Section 8, each day the vacancy exists, so that the Governor may fill vacancies at any time while the Senate is recessed although such vacancies first occurred prior to Senate adjournment. [248-9]
5. Appointments by the Governor without Senate approval to fill vacancies happening during a Senate recess pursuant to the Constitution of Pennsylvania, Article IV, Section 8, do not expire at the end of the current or recessed session of the Senate, and to hold otherwise would improperly require affirmative judicial insertion of language into the Constitution. [249-50]
Judge MENCER filed a dissenting opinion, substantially as follows:
1. When a vacancy in office first occurs while the Pennsylvania Senate is in session, the Governor may not fill such vacancy without Senate approval during a Senate recess unless he first nominated a person to fill such vacancy while the Senate was in session, which appointment was rejected or not acted upon by the Senate. [250-3]
2. The word "shall" as used in the Constitution of Pennsylvania, Article IV, Section 8, is mandatory, not discretionary, and requires the Governor to submit to the Senate for approval the names of appointees to fill vacancies happening while the Senate is in session. [253-4]
3. Ordinary words in the Pennsylvania Constitution must be construed in their popular and general sense, as the people who voted for a provision would normally understand them, and the plain meaning of such words, when they are unambiguous, cannot be disregarded. [254]
4. The Pennsylvania Senate meets in full year sessions, and appointments made by a Governor to fill vacancies, while the Senate is in recess, expire at the end of the recessed session of the Senate, during which the appointments were made, according to the clear pronouncements of the Constitution of Pennsylvania, Article IV, Section 8, expressed in the constitutional changes of 1967. [254]
Argued March 8, 1972, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER and ROGERS. Judge BLATT disqualified herself and did not participate.
Original jurisdiction, No. 35 C.D. 1972. Complaint in quo warranto filed in the Commonwealth Court of Pennsylvania challenging the appointment of a member and Chairman of the Milk Marketing Board in case of Stanley G. Stroup, Richard C. Frame and Richard A. Tilghman, Members of the Senate of the Commonwealth of Pennsylvania, v. Harry E. Kapleau. Preliminary objections in the nature of a demurrer filed. Held: Preliminary objections sustained and complaint dismissed.
Bruce E. Cooper, with him Cooper, Friedman Friedman, for plaintiffs.
Harold E. Kohn, Special Attorney, with him Barry A. Roth, Deputy Attorney General, Lawrence J. Beaser, Assistant Deputy Attorney General, and J. Shane Creamer, Attorney General, for defendant.
The legal issues involved herein are discussed and resolved by this Court in Stroup v. McNair, 5 Pa. Commw. 244 (1972).
ORDER
AND NOW, May 5, 1972, the Preliminary Objections of the defendant are sustained and the plaintiffs' complaint dismissed.
Judge MENCER dissents for the reasons set forth in his dissenting opinion in Stroup v. McNair, 5 Pa. Commw. 244 (1972).