The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1891-07-17
TO GUST WALLER
That Is the Effect of Judge Simon
toms Opinion.
SNYDER IS ALSO DISQUALIFIED.

Waller Disqualified Because He Has
Not Been Commissioned by Gov
ernor Pattison, While Snyder Is
Ineligible Because He Was Re-
jected by the Senate.
HARRISBURG, July i7.-In an opinion
handed down by Judge Simonton in the
commonwealth of Pennsylvania against
d. j. Waller, Jr., superintendent of
public instructions the court enters
Judgment of custer in favor of the COM
monwealth against DIR. Waller Quo
warranto proceedings were instituted
few weeks ago to try the title of the re-
spondent to the Office of superintendent
of public instructions and the case was
argued without a jury.
The facts of the case in brief are that
Governor Beaver, before the expiration
of his term, reappointed DIR. Waller to
be superintendent of public instruction
for full term, and Governor Pattison
having appointed DIR. Snyder, the con-
tention was over the title to the office,
the commonwealth holding that DR..
Waller had been appointed only until
the end of the next session of the senate.
Governor Beaver had first commits
stoned DIR. Waller to the end of the ses-
sion of the senate of 1891, but subse-
quently, by and with the advice and
consent of the senate, appointed him for
a full term of four years. to date from
March, 1880. But Governor Pattison
issued no commission on this second ap-
pointment and instead nominated J.
z. Snyder, whose nomination was re-
tod 1NtF ft1n N 1 I'd
journment of the senate Governor Pat
tison appointed and commissioned DR..
Snyder. Then rose the litigation.
Snyder Is Also Disqualified.
Regarding Chief Justice Mercur's
opinion in the same case, with respect to
an appointment after rejection by tho
senate, as in the case of DR.. Snyder, the
court considers that the conclusion to
which it leads is binding, and, therefore,
adopts it. He thinks the spirit and in
tent of the constitution forbids one who
has been rejected by the senate to be
appointed.
The court holds that DIR. Waller, hav-
ing been duly qualified, is an officer de
facto, whose official acts are legal, valid
and binding until his successor has been
legally appointed and qualified, but he
holds further that DIR. Waller must
show that he is in possession not only de
facto but also de jure, which he cannot
do unless he shows that he is in during
term for which he was legally appointed
and qualified, or, if the term have ex-
pired, with legal right to hold until
his successor has been legally appointed
and qualified, which counsel for DIR.
Waller contends is his position. He
thinks the authorities cited do not sus-
tain this point. 1--WE feel ourselves
obliged to hold on this review of the
case that the respondent has not shown
valid title as against the state to the
Office in question now held by him.
Waller Still Holds the Fort.
The conclusions of law briefly are
that the governor could not appoint DIR.
Waller during the recess of the senate
to the vacancy which occurred during
the recess for a longer period than to the
| end Of the next session; thai the nomi-
nation and confirmation of DIR. Waller
| without commission from the COVER
nor did not vest the Office in him; that
the only appointment by which he had
title to said office expired at the end of
the session, Judgment of custer in
| favor of the commonwealth, and against
respondent, is therefore directed to be
entered, unless exceptions be filed
within the time limited by law.
1t is understood that the case will be
carried to tho supreme court, in which
event final decision will hardly be rem
dered before next May. Meanwhile DR..
Waller will discharge the duties of the
office.