Stroup v. McNair

Opinion by Judge Wilkinson, This is an action in Quo Warranto brought by three members of the Senate of the Commonwealth of Pennsylvania to test the right of defendant to serve as a Member of the State Tax Equalization Board of Pennsylvania. The case is before us on Complaint filed and Preliminary Objections.1 The first ground for preliminary objection is that the Plaintiffs do not have standing to bring Quo Warranto. Defendant relies, on the line of cases that asserts that only the Attorney General, the District Attorney, or a person with a special interest as distinguished from the interest of the public generally can bring Quo Warranto. See Mayer v. Hemphill, 411 Pa. 1, 190 A. 2d 444. (1963). In dismissing this preliminary objection, we have no quarrel with these cases. We simply find that a member of the Senate, when he asserts that individuals are purporting to hold public office which he. alleges requires Senate approval, and he has not been given the opportunity to express his [247] approval or disapproval as a member of that body, has a special interest within the meaning of these cases. The third and fourth paragraphs of the Preliminary Objections demur to the allegations of the complaint that the defendant’s appointment required the consent of two-thirds of the Senate. This requirement is alleged to be contained in Article IV, Section 8(a), of the Pennsylvania Constitution which provides as follows: “(a) The Governor shall appoint an Attorney General, a Superintendent of Public Instruction and such other officers as he shall be authorized by law to -appoint. The appointment of the Attorney General, the Superintendent of Publie Instruction and of such other officers as may be specified by law, shall be subject to the consent of two-thirds of the members elected to the Senate.” The defendant relies on subparagraph (b) of the same Section which provides: “(b) Except as may now or hereafter be otherwise provided in this Constitution as to appellate and other judges, he may, during the recess of the Senate, fill vacancies happening in offices to which he appoints by granting commissions expiring at the end of its session and fill vacancies happening in the office of Auditor General or State Treasurer or in any other elective office he is authorized to fill. If the vacancy happens during the session of the Senate except as otherwise provided in this Constitution, he shall nominate to the Senate, before its final adjournment, a proper person to fill the vacancy.” Defendant contends that the appointment was made during the recess of the Senate, and the vacancy “happened” during the recess. We must sustain defendant’s contention. The defendant asserts that the Senate was in recess when the appointment was made on December 29,1971. This argument is based on the wording of the Adjournment Resolution of the Senate which read: “Resolved, [248] (the House of Representatives concurring), That this 155th Regular Session adjourn Sine Die on this twenty-eighth day of December, 1971, at 10:00 o’clock, P.M.” This resolution was adopted by the Senate at 9:15 p.m., and was promptly transmitted to the House of Representatives. The House of Representatives concurred at 10:45 p.m. We hold this to be a valid concurrence. We are not here involved with the enrolled bill doctrine or “turning back the clock.” The Senate resolution did not make time of the essence. We hold that the adjournment of the House of Representatives at 10:45 p.m. was a concurrence in the Senate Adjournment Resolution as passed by the Senate. Obviously, we would have an entirely different question presented to us if the Senate, after 10:00 p.m., had acted to withdraw or recall the resolution, or if it had expressly made the Resolution of Adjournment conditioned on the concurrence being affirmatively voted by the House of Representatives prior to 10:00 p.m. The vacancy originally “happened’? on November 14, 1971, while the Senate was in session. Plaintiffs contend that this prevented the filling of the vacancy during a subsequent recess of the Senate. Whatever validity that argument may have had originally has long since been discarded by the Supreme Court in Commonwealth ex rel. Lafean v. Snyder, 261 Pa. 57, 104 A. 494 (1918), and that position reconfirmed in Ritenour v. Peirce, 442 Pa. 1, 272 A. 2d 900 (1971). The Supreme Court was evenly divided on the recess appointment of judges when the vacancy “occurs” during a Senate session as set forth in Article V, Section 13(b). It was the change in the wording from “happening,” as in Article IV, Section 8(b), to “occurs” in Article V, Section 18(b), which caused the division. Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 281 A. 2d 57 (1971). It is apparent to us, in view of the language in the very recent decisions in Ritenour, supra, [249] and Twelve Common Pleas Judges, supra, that the Supreme Court continues to maintain the position that the vacancy with regard to nonjudicial appointments continues to “happen” each day and that, therefore, the Governor was authorized to fill these vacancies under Article IV, Section 8. The fifth paragraph of the Preliminary Objections demurs to the allegations of the complaint that the term of the appointee expired at 12:00 noon on January 4, 1972. The complaint bases this allegation on the plaintiffs’ interpretation of the provision of Article IV, Section 8, reading: “. . . commissions expiring at the end of its session. . . .” Plaintiffs argue that this appointment was made, at best, during the recessed 155th session of the Senate and, under this provision, would end at the end of the 155th session at noon on January 4, 1972. Support is found for this argument in the fact that the corresponding provision of the former Constitution provided: “. . . commissions which would expire at the end of the next session. . . .” (Emphasis supplied) Plaintiffs would have us interpret the deletion of the word “next” as equivalent to inserting the words “current” or “recessed” session. We cannot adopt this argument and must sustain defendant’s demurrer on this point. Once we have concluded, as we have, that the Governor can make recess appointments under these circumstances, then we must decide that such authority was to be meaningful and not limited to appointments to terminate in a matter of days or weeks as such recess appointments would normally do under plaintiffs’ position. To impel us to adopt such an untenable position would require the affirmative insertion of such words as “current” or “recessed.” It may very well be that such was the intention of the people when they adopted the new Constitution, so as to avoid what the plaintiffs assert is the circumvention of the constitu [250] tional restraint on gubernatorial appointments. If. so, it should have been more clearly expressed by the insertion of language rather than so subtly expressed by the deletion of one word. In view of our decision that confirmation by the Senate was not required in this case, it is unnecessary to consider the proposition advanced by the defendant that Article IV, Section 8, of the Pennsylvania Constitution, in requiring a two-thirds vote of the Senate for confirmation, violates the “One man-One vote” rule of the Federal Constitution. The Preliminary Objections of the defendant are sustained and the plaintiffs’ Complaint dismissed. Footnotes [1] The defendants had raised the question of the sufficiency of the service, but this objection was withdrawn at oral argument in an effort to expedite the disposition of the cases.