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STROUP v. MCNAIR (04/27/72)

decided: April 27, 1972.

STROUP, ET AL.
v.
MCNAIR



Original jurisdiction.

COUNSEL

Bruce E. Cooper, with him Cooper, Friedman & Friedman, for plaintiffs.

Harold E. Kohn, Special Attorney, with him Barry A. Roth, Deputy Attorney General, Lawrence J. Beaser, Assistant Deputy Attorney General, and J. Shane Creamer, Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Judge Blatt disqualified herself and did not participate. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Mencer.

Author: Wilkinson

[5 Pa. Commw. 244 Page 246]

This is an action in Quo Warrantor brought by three members of the Senate of the Commonwealth of Pennsylvania to test the right of defendant to serve as a Member of the State Tax Equalization Board of Pennsylvania. The case is before us on Complaint filed and Preliminary Objections.*fn1

The first ground for preliminary objection is that the Plaintiffs do not have standing to bring Quo Warrantor. Defendant relies on the line of cases that asserts that only the Attorney General, the District Attorney, or a person with a special interest as distinguished from the interest of the public generally can bring Quo Warrantor. See Mayer v. Hemphill, 411 Pa. 1, 190 A.2d 444 (1963). In dismissing this preliminary objection, we have no quarrel with these cases. We simply find that a member of the Senate, when he asserts that individuals are purporting to hold public office which he alleges requires Senate approval, and he has not been given the opportunity to express his

[5 Pa. Commw. 244 Page 247]

    approval or disapproval as a member of that body, has a special interest within the meaning of these cases.

The third and fourth paragraphs of the Preliminary Objections demur to the allegations of the complaint that the defendant's appointment required the consent of two-thirds of the Senate. This requirement is alleged to be contained in Article IV, Section 8(a), of the Pennsylvania Constitution which provides as follows: "(a) The Governor shall appoint an Attorney General, a Superintendent of Public Instruction and such other officers as he shall be authorized by law to appoint. The appointment of the Attorney General, the Superintendent of Public Instruction and of such other officers as may be specified by law, shall be subject to the consent of two-thirds of the members elected to the Senate." The defendant relies on subparagraph (b) of the same Section which provides: "(b) Except as may now or hereafter be otherwise provided in this Constitution as to appellate and other judges, he may, during the recess of the Senate, fill vacancies happening in offices to which he appoints by granting commissions expiring at the end of its session and fill vacancies happening in the office of Auditor General or State Treasurer or in any other elective office he is authorized to fill. If the vacancy happens during the session of the Senate except as otherwise provided in this Constitution, he shall nominate to the Senate, before its final adjournment, a proper person to fill the vacancy."

Defendant contends that the appointment was made during the recess of the Senate, and the vacancy "happened" during the recess. We must sustain defendant's contention.

The defendant asserts that the Senate was in recess when the appointment was made on December 29, 1971. This argument is based on the wording of the Adjournment ...


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