holding that governor's constitutional duty to name appointee "confers a legal interest" on state senator seeking to compel governor to fulfill his or her constitutional duty
How later courts described this case
- holding that governor's constitutional duty to name appointee "confers a legal interest" on state senator seeking to compel governor to fulfill his or her constitutional duty
- Governor’s nomination power is forfeited if not exercised during ninety-day period
- ninety-day constitutional provision is mandatory, and not merely directory, as to the timeliness of nominations
- “[T]he power of appointment is intrinsically an executive function.”
Written by the judges who cited it.
The opinion
*61 Concurring Opinion by
Judge DiSalle :
I join in the majority’s opinion in all respects. While I do not believe that we have presently before ns a case or controversy (in view of onr decision here that the Governor may not be compelled to fill any vacancies at all in the first instance), it is equally clear to me that when the Governor does finally decide to fill a vacancy by sending a nomination to the Senate, a controversy will immediately arise; hence, I have no hesitancy in reaching the merits at this point. In my view, we should not forestall judicial consideration of this pressing constitutional matter any longer. 1 Indeed, it is regrettable that, because we are here dealing with preliminary objections, we may not enter a definitive order at this time, and finally dispose of this litigation.
The Governor took office more than nine months ago and, as Petitioner alleges, hundreds of important public positions remain vacant.