Harrisburg telegraph. [volume] (Harrisburg, Pa.) 1879-1948, 1918-04-04
SUPREME COURT
FOUR TO THREE
Justice Frazer Wrote the
Opinion Upholding
Judge kunkel

Justice Robert s. Frazer of Pitts
burgh. wrote the opinion OF the Su-
preme Court upholding the Gov
ernor's right to make recess ap-
pointments' of state officials reject
ed by the state Senate. 1t was con-
Cured in by Justices Mestrezat,
Stewart and Walling. After dispos-
ing of questions of practice, decid-
ing that the proceedings had been
properly brought in the name or
the Commonwealth, Justice Frazer
quotes the Constitution and the act
creating the banking department. on
the question of filling the office OF
commissioner and then continues:
No Limitations on Governor
1T thus appears the Governor is
authorized to fill 4 vacancy tempo
rarily or until the end of the neNN
session of the Senate, but not for
a full or uneXpired term without
the advice and consent of the SEN
ate. Appellants do not contend that
the vacancy in question was one
that had not happened during the
recess of the Senate, though II III
fact arose while the Senate was in
session. but base their argument
squarely ON the contention that the
Governor could not fill the vacancy
however or whenever arising, by ap-
pointing one whom the Senate had
previously rejected for the office.
The constitutional provision places
no express limitation upon the choice
of the Governor in appointing 10 fill
vacancies. He is accordingly the
sole judge of the qualifications of
the appointee, unless an implied re-
striction is placed upon this power
by reason of the grant of power TO
the Senate to reject an appointee TO
till n regular or uneNpired term.
Did the people. in adopting the con-
stitutional provision in question.
place an implied limitation upon the
power of the Governor to fill va
Cancies by reason of also having pro-
vided that appointments for regular
terms of service or for uneNpired
terms. should require the approval
of the Senate?
"Or. to state the question in a
different form, does il follow that
the people in requiring the consent
OF the Senate to appointments for
regular or uneXpired terms of serv-
ice intended that a rejection by the
Senate OF an appointee necessarily
eliminated him from the list of pos
Slble appointments for filling the
temporary vacancy created by such
rejection without express words to
that effect? If this question ne an
NN tltu III Nitt OLlllA AlldLlNtr II ~ pei
tinent to inquire how long must the
disqualification of the rejected per-
son continue. 1t is for the succeed
ing vacancy only. or does IL diSqual-
ify him and consequently limit the
power OF the Governor for all
time?'
Justice Frazer then referred tol
provisions in earlier constitutions of
this and other states and quoted
tDraraIarFs in both v,p n ~ sta .
appointments. He quoted at length
from Attorney General Hensers
opinion on the right of Governor
Pattison TO appoint Robert Watchorn
factory inspector. That case the
justice said, lis identical in all re-
spects with the one now before us,
and while the opinion of the attor-
ney general is not binding upon this
court his Interpretation of the ques-
tion is strongly persuasive
The court then discussed various
cases referred to by the appellants.
but decided they did not apply and
in conclusion affirmed the judgment
OF the court below.
The Dissenting Opinion
In the dissenting opinion. Chief
Justice Brown, supported by Jus
tees Potter and Non Moschizker.
takes the stand that such action by
the Governor. If legal, would enable
him TO defy the direct provisions of
of the Constitution and continue
men in office regardless of the ap-
proVal of the Senate. He says:
What the Constitution forbids
may not be done, and its inhibitions
need not always be expressed for they
are equally effective and not less to
be regarded when they arise by
necessary implication. In Constru-
ing a constitution, its words are TO
receive their popular, natural and
ordinary meaning. When these two
propositions are borne in mind there
IS no escape, it seems to me, from
the conclusion that the Governors
appointment of the appellee as
commissioner of banking. to serve
until the expiration OF the next ses-
sion OF the Senate, after he had
been rejected by that body at its
late session. was in clear, palpable
and plain disregard and defiance of
Section ), Article 4, of the Consti-
tuition. The words of that article
can have but one meaning TO a lay
man, and, if this be so. how can a
different one be given to them by
the courts, whose duty it is to read
them as they are popularity. naturally
and ordinarily understood?
In so acting the Senate exercised
a power expressly conferred upon il
by the Constitutions as a check upon
the appointing power, and vet i'm
mediately after il had adjourned the
Governor. in the face of its rejection
of his nominee. appointed him 10
the office which it had lust declared
he should not fill. II the Constitu-
ton may be thus circumvented the
executive may do indirectly what
that instrument forbids his doing
directly, for he can make appoint
ments against the advice and CON
sent of the Senate"
Drowning of Chas. Phillips