Commonwealth v. Waller

• Decision Date: 04 January 1892
• Docket Number: 3
• Citation: 23 A. 382,145 Pa. 235
• Parties: COMMONWEALTH v. D. J. WALLER, JR
• Court: Pennsylvania Supreme Court

23 A. 382

COMMONWEALTH v. D. J. WALLER, JR

145 Pa. 235

No. 3

Supreme Court of Pennsylvania

January 4, 1892

Argued October 26, 1891 ^[*]

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY.

No. 3 May Term 1892, Sup. Ct.; court below, No. 218 September Term 1891, C.P.

On June 30, 1891, upon a suggestion filed by Mr. W. U. Hensel attorney general, the court below awarded a writ of quo warranto against D. J. Waller, Jr., requiring him to show by what warrant he claimed to have and exercise the office of superintendent of public instruction; whereupon, the defendant appeared and filed a plea setting up title in himself to said office. The commonwealth then demurred to the defendant's plea, except as to the eleventh paragraph thereof, to which a replication was filed.

The eleventh paragraph of the plea was as follows:

"11. That thereupon [upon his inauguration] the said Robert E Pattison, then governor of Pennsylvania, recognized and accepted the nomination and confirmation of the said D. J Waller, Jr., as aforesaid, but withheld the commission evidencing such appointment, because of the pressure of other public duties, and in order to determine the question whether it should be issued for the full term of four years, or for the unexpired portion thereof; as stated by him to the said D. J. Waller, Jr., and others."

At the trial, on a submission to the court, without a jury, under the act of April 22, 1874, P.L. 109, the respondent offered to prove, by a witness on the stand, the averments of fact set out in the said paragraph of the plea. The offer was objected to by the commonwealth, as irrelevant and immaterial.

By the court: Offer excluded; exception.

On July 16, 1891, the court, SIMONTON, P.J., filed the following decision:

From the averments and admissions contained in the pleadings, we deduce the following

FINDINGS OF FACT:

1. James A. Beaver, then governor of the state of Pennsylvania, on May 13, 1889, by and with the advice and consent of the senate, appointed E. E. Higbee, superintendent of public instruction, for the term of four years from April 1, 1889; said Higbee duly qualified, and by virtue of his appointment and the commission issued to him, entered upon the duties of said office, and continued therein until he died, December 13, 1889, at a time when the senate was not in session, whereby said office became vacant.

2. While said office was thus vacant, and before the next session of the senate, on February 14, 1890, said governor appointed the respondent superintendent of public instruction, and on said day commissioned him "to have and to hold the said office, together with all the rights and privileges thereto belonging or by law in anywise appertaining, until the end of the next session of the senate, if he shall so long behave himself well."

3. When the senate next met, on January 6, 1891, said governor nominated respondent to the senate, for confirmation as superintendent of public instruction for the term of four years from the first day of March, 1890, being the date on which respondent took possession of said office under the appointment first above mentioned, and on January 20, 1891, during the same session of the senate, said nomination was by the senate confirmed.

4. The term of office of said James A. Beaver, as governor, expired on January 20, 1891, and Robert E. Pattison was on said day duly inaugurated as governor of this commonwealth, prior to the particular session of the senate at which the nomination above stated was confirmed.

5. No commission was issued by Robert E. Pattison, governor, to respondent, in pursuance of the nomination and confirmation by the senate above stated, nor was any further action taken in the matter until May 27, 1891, when said governor nominated to the senate Z. X. Snyder, to be superintendent of public instruction for the term of four years from June 1, 1891, and on May 28, 1891, the senate, refusing to advise and consent to said nomination, rejected it.

6. The senate finally adjourned on the same day, May 28, 1891, and on the next day, May 29, 1891, the governor appointed and commissioned said Z. X. Snyder to be superintendent of public instruction from said day, May 29, 1891, until the end of the next session of the senate, which is still in the future. Said Z. X. Snyder accepted said commission and duly qualified, and on June 3, 1891, demanded possession of said office of superintendent of public instruction from respondent, who refused, and still refuses, to deliver the same to him, and at the date of the commencement of these proceedings respondent held and still holds, said office.

Certain averments of matters of fact were made in one paragraph of the plea filed on behalf of respondent, which were denied in the replication filed on behalf of the commonwealth. An offer made on the trial to prove these facts, was objected to by the learned attorney general, on the ground that they were irrelevant and immaterial. This objection was sustained by the court, and a bill of exceptions was sealed for the respondent. The facts thus offered to be proved are therefore not in the case at present, and hence are not found.

DISCUSSION.

The legal questions supposed by counsel to be involved in these facts and raised by the pleadings will appear in the course of this opinion. They were discussed with great ability and thoroughness by the learned attorney general and his able deputy on behalf of the commonwealth, as well as by the eminent counsel who represent the respondent, and must now be considered by the court.

The answers to be given to these questions depend mainly upon the proper construction and meaning of § 8, article IV. of the constitution, which is as follows: . . . .

It is contended on behalf of respondent, as stated by counsel in their brief, that:

"By this provision, there is the absolute power to fill a vacancy happening during a recess of the senate, in the office of superintendent of public instruction. The general language of the first clause of the quoted portion, is subject to the exception contained in the second clause; and the two together will be read that he may appoint during the recess of the senate to vacancies by granting commissions which expire at the end of their next session, except in the case of certain enumerated officers, to wit, auditor general, state treasurer, secretary of internal affairs, and superintendent of public instruction, judicial offices, etc. If a vacancy happens in any of these offices in a recess, no vote of the senate is necessary, and no limitation is placed upon the commission, except in case of elective offices, in which case provision is made according as the vacancy happens within, or more than three months before the next election. The superintendent of public instruction not being an elective office and no limitation being placed upon the commission, the power is conferred, in case of a vacancy happening during a recess of the senate, to appoint for the full vacancy.

"There is absolutely no power to fill for less than the period of such vacancy, nor can he make two appointments which in succession may fill such vacancy; the superintendent being irremovable at the pleasure of the governor, according to § 4, article VI. of the constitution. He can exercise the power of appointment to a vacancy but once, and then only for the full constitutional period.

"The language of the constitution being that the governor shall have power to fill any vacancy that may happen, during the recess of the senate, in the office of the superintendent of public instruction, and no limit being placed upon the appointment as to when it shall expire, the language naturally imports that the appointment shall fill the entire vacancy once for all, otherwise, in some succeeding part of the article it would have indicated the limitation by express language. The earlier part of the section provides for the filling of appointive offices until the expiration of the next session of the senate. In the succeeding clause, one appointive office is expressly named, to which the appointment in case of vacancy is made to fill the vacancy without any limitation or restriction to a less period of time than would be covered by the full extent of the vacancy. The governor not only has the power to completely fill the vacancy, but it is his duty to make the appointment, and for the entire period of the vacancy.

"It is quite clear that Governor Beaver intended to exercise his full constitutional duty in the case, and to appoint, for all the time that he had power to appoint. This is evidenced, not only by the fact that he made the appointment and issued his commission therefor, but also by the fact that as soon as the senate was assembled he presented the name of Mr. Waller for the fullest period possible, dating from the time of the original appointment, to wit, March 1, 1890. This indicates a completed purpose to appoint, so far as his action was concerned, for the entire period for which appointment was supposed to be possible."

This proposed construction of the constitution, and the arguments brought forward in support of it, are very ingenious, and there is certainly, to say the least, a discrepancy between the two clauses of § 8. The second clause ordains "He (the governor) shall have power to fill any vacancy that may happen during the recess of the senate in the office of . . . superintendent of public instruction." This gives absolute power to the governor to fill any vacancy in the office of superintendent of public instruction occurring during the recess of the senate, without limitation as to time. But the first clause ordains: "He shall have power to fill all vacancies that may happen in...