The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1891-07-24
DIR. WALLER 0USTED.
JUDGE slMONToN DECIDES THAT HE is
NOT STATE SUPERINTENDENT.

'S'' - y W oi'N'. ehS opl'chitSS vi
ex Governor Beaver.
The court gives the usual time in
which exceptions may be filed. The
case, it is understood, will be appealed
to the supreme court, in which event
final opinion will hardly be reached
before next May. The case, however,
may be heard in Pittsburg in October,
when the supreme court meets there.
The court holds that person rejected
by the Senate cannot be appointed
and this will also bar DR.. Snyder, the
governors appointee.
Quo warranto proceedings were in
stituted few weeks ago to try the IT,
tie of the respondent to the Office of
superintendent of public instruction,
and the case was argued without a ju-
ry. The facts Of the case in brief are
that Governor Beaver, before the ex-
piration Of his term, reappointed DR..
Waller to be superintendent of public
instruction for full term, and Cover
nor Pattison having appointed DIR.
Snyder, the contention was over the
title to the Office, the commonwealth
holding that DR.. Waller had only been
appointed until the end of the next
Senate Governor Beaver had first
commissioned DR.. Waller to the end
of the session of the Senate of 1907
but subsequently nominated him for a
full term of four years to date from
March 1st, 1890. The Senate con-
sented, but Governor Pattison, who
took office, issued no commission on
this second appointment and instead
nominated Z. X. Snyder, whose nom-
ination was rejected by the Senate.
Upon the adjournment of the Senate
Governor Pattison appointed and com.
missioned DR.. Snyder. Then arose the
litigation.
Judge Simonton, in the opinion says
the questions involved mainly depend
upon the proper construction and
meaning of section 8, article 4, Of the
constitution, relative to the power of
the governor to fill vacancies that may
happen in offices to which he may ap-
point during the recess of the Senate.
The court suggests that the construc.
ton Of this section by counsel for the
respondent, who argued that Governor
Beaver intended to use his power pot
only to fill the vacancy caused by DIR.
Higbee's death, but also to appoint
for all the time that he had power to
appoint, was very ingenious. He draws
attention to the discrepancy between
the two clauses of section s. The sec
ond clause gives the governor absolute
power to fill any vacancy in this Office
without limitation as to time but the
first clause limits the time for which
an appointment made during the re-
cess OF the Senate shall continue to
the end Of the next session. The
court says if full force and effect be
given to the first clause the term must
be limited to the next session, while,
if the second clause be taken and CIV
en- full effect the whole vacancy is to
be filled. And that if the second clause
is not taken literally it is, SO far as the
Office of superintendent Of public in
sruction is concerned, entirely super
fluous and must be wholly disregarded.
The court discusses at length the va
rious constructions which might be
placed upon the two clauses.
Numerous authorities are cited upon
the second point of the respondents
counsel, that the subsequent nomina-
tion of DIR. Waller and its confirmation
constitute full and complete appoint
ment for the full term. The court
says the question involved in this is a
novel one, for the reason that the
power of removal in most cases ex-
lists in the power that appoints, and,
therefore, the question when an ap-
pointment became complete is of little
consequence, as in any event second
appointment would be held to revoke
the first. anna. ...r.
Regarding Chief Justice Mercur's
opinion in the Lane case, with respect
to an appointment after rejection by
the Senate, as in the case of DIR. Sny-
der, the court considers that the con-
clusion to which it leads is binding,
and therefor adopts it. He thinks the
spirit and intent of the constitution for
bids one who has been rejected by the
Senate to be appointed. The court
declines to decide the point that when
permanent appointment has not been
made another temporary appointment
can be made without the advice and
consent of the Senate, because it is
not squarely before him.
The court holds that DR.. Waller,
having been duly qua fled, is an officer
de tacto, whose official acts are legal,
valid and binding until his successor
has been legally appointed and qualih-
ed. But he holds further that DR..
Waller must show that he is in posses
sion not only de factO, but also de j,tre
which he cannot do unless he show
that he is in during term for which he