The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1897-04-29
GOVERNOR CAN'T APPOINT
TO TIE THREE VACANCIES ON
EACH ASYLUM BOARD.
Mr.. Burton Makes an Argument Tha!
Clearly Shows That the Governor
Has no Power to Appoint.


To the Editor:-Some of the papers yes
terday misconstrued the latter part OF
court does not pass upon the power OF
the Governor in the recess of the Senate
to appoint the successors of thse directors
or trustees" whose six years expired
in March, 1897. That question was not
necessarily involved in the cases, though
/ tried to get it decided. All the court
said was that the directors are entitled TO
hold for their respective terms, and till
their successors are elected and appointed
and qualified. The question hinges upon
two sections of The COde-sections 1917
and 1920. By the former it is provided
that all officers shall continue IN their re-
spective offices until their successors shall
have been elected or appointed and shall
have been duly qualified" By the lat
ter it is inter ALA provided (2) that the
Governor is to see that all offices are fill
ed and the duties thereof performed, or
in default thereof, apply such remedies
as the law allows, and if the remedy is
imperfect, acquaint the General Assembly
Herewith; and 80 "He is to make the APP
pointments and supply the vacancies
not otherwise provided for in depart
ments.'
Now the clear intention of the law in en-
trusting these powers to the Governor Is
10 have always some one to discharge
the duties of the office. In the first place,
he is to see that the offices are filled.
They are filled, because section 1872 pro-
vides that all officers shall hold till their
successors are elected and appointed and
cd nd inf cd
In the manner provided i'll The Code.
section 2245, and by the new act alike
nominated by the Governor and
by and with the advice and consent of
ii majority of the Senate appointed by
him.
Now. does the subsection of section
1920 give the authority to the Governor?
That empowers him to fill vacancies, and
no vacancy can exist where there is an
incumbent provided by law to perform the
duties of an office. This contention rem
.ders the two acts consistent, and it is sus-
tanned by the reason of the thing. Under
the other construction any Governor who
should be at variance with the Senate
could as easily nullify the provision of
the law which requires its confirmation
of his nomina tons. For all that he
would have to do to acquire absolute con-
troll would be to send names to the Senate
not acceptable to it, and the power of ap
pointment would become. after adjourn
ment freed from the check intended by
the law.
The authorities, so far as l have been
able to find them, are all one way.
Wherever the officer is entitled to hold
over by law, there is no vacancy, when
the Governor fails to nominate to the
Senate, as the incumbent holds over as
de jure officer till the Senate confirms the
nominees of the Governor. The matter
is fully discussed in the following author
tiles: State VS.. Howe, 25 Ohio St, 5SS;
Is Amer. Reports, 32D; State vs.. Lusk,
Is Mo-, 1888; Commissioners VS.. Hanley,
8 Penn. ST., 513: Pople VS.. Tilton, 81
Col, GA; People VS.. Van Horn, Is
Wend., SIS: Kimberlain VS.. State. 100
Ind, 120: State VS.. Sullivan. 45 Mimi,
300: State VS.. Smith. 81 Mo. 49, State
VS.. Saxon, % Fla, 1872; % Am. and Eng.
En-. Law, 2. See also, Cloud vs. Wilson.
y n. c., 1876: Worley VS.. Smith, 81 n.
c.; Sneed VS.. Bullock, so \. c.. 1872; and
People VS.. McIver. 6S n. c., ACT.
Judge Shepherd concurs with me in
these views. r. O. BURTON.
Raleigh, April 2S, 1897.