THE

HE decision of the Supreme Court of Pennsylvania, as handed down on Monday, January 4th, in Philadelphia, reverses that of the lower Court, and confirms the right to office of Dr. D. J. Waller, Jr., as State Superintendent of Public Instruction for the unexpired term of Dr. E. E. Higbee. Dr. Higbee entered upon the office of State Superintendent April 1st, 1881, and was reappointed in 1885 and 1889. His third term would have expired April 1st, 1893. He died December 13, 1889. Dr. Waller was appointed to the vacancy by Governor Beaver February 14, 1890. The Senate was not then in session. The next session of the Senate began on the first Tuesday in January, 1891, and on January 6th Governor Beaver sent in his nomination to that body for a term of four years, to date from March 1st, 1890. On January 20th this nomination was confirmed by the Senate, but Governor Beaver had by that time passed out of office, and Governor Pattison did not then or thereafter issue the necessary commission for the four years'

term.

It was held by the Executive that, in the absence of a commission, the appointment by Governor Beaver and the confirmation by the Senate did not constitute a valid claim to the office, and that with the adjournment of the Senate the only term for which Dr. Waller could be appointed had expired. Accordingly, at the close of the

legislative session, Dr. Z. X. Snyder, Principal of the State Normal School, Indiana, Pa., was nominated. This nomination was rejected by the Senate; but Dr. Snyder was appointed and commissioned by the Governor immediately upon the adjournment of the Legislature. Formal demand was now made upon State Supt. Waller for possession of the office. This he formally refused to surrender, holding that the unexpired term of Dr. Higbee was the least period of his legal tenure of office. The issue was thus clearly made, and the case carried into the Dauphin County Court by the Attorney General upon a writ of quo warranto, with Dr. Waller as respondent.

The case attracted much attention in the newspapers and throughout the State. Able counsel were employed on both sides, and it was recognized that the decision of the points of constitutional law in question must establish a precedent for the future. After learned argument and an exhaustive presentation of authorities on both sides, the lower court decided against both claimants, holding that Dr. Waller's term ended with the adjournment of the Legislature of 1891, and that Dr. Snyder, having been rejected by the Senate, could not be appointed to the said office after such rejection. The case was at once appealed to the Supreme Court by Dr. Waller for final decision, with the result already stated, this court of final resort holding that the appointment of Dr.

Waller by Governor Beaver having been confirmed by the Senate, could not under the Constitution of the State be for a less period than the unexpired term of Dr. Higbee, or until April, 1893.

We take pleasure in noting and commend. ing the friendly spirit that has prevailed on every hand during the trial and pending the decision of this important case. It was a hard-fought legal contest, conducted with great skill and ability on both sides, in which everybody recognized the fact that "the Court must decide" and with that final decision all must be content. The unfailing courtesy of the Attorney General was conspicuous throughout the entire proceedings, and we take pleasure also in bearing testimony to the resolute opponent, and the learned and eloquent lawyer, who could not be other than the courteous gentleman. The counsel for Dr. Waller were Hon. Chas. W. Stone, late Lieutenant-Governor, more recently Secretary of the Commonwealth under Governor Beaver, and now member of Congress from Warren county; Hon. W. S. Kirkpatrick, late 'Attorney General under Governor Beaver ; and Robert Snodgrass, Esq., of Harrisburg.

It has not seemed proper heretofore to discuss this case in The Journal, and all reference to it has for that reason been avoided in these columns. Now that it has been decided, we present the proceedings in full as a part of the permanent record,-including its history, the argument of counsel on both sides, and the complete text of the judicial decisions of both the lower and higher courts-making an issue unique in the experience of The Journal, and a case at law unique in the educational history of Pennsylvania. With the exception of the decision last named, all the matter found herewith is given in the same form as in the paper books" of the opposing counsel in presenting the case before the Supreme Court of the State.

HISTORY OF THE CASE.

On the 13th day of May, 1889, James A. Beaver, who was then Governor of the State of Pennsylvania, "by and with the advice and consent of the Senate," appointed E. E. Higbee to be Superintendent of Public Instruction, for the term of four years, from the 1st day of April, 1889. In pursuance of this appointment, Dr. Higbee duly qualified, entered upon the discharge of the duties of said office, and continued therein until December 13, 1889, when he died, and thereupon said office became vacant.

The Senate not being in session at that time, the Governor, in pursuance of the constitutional authority vested in him by Section 8, Article IV, on the 14th day of February, 1890, appointed and commissioned the appellant, D. J. Waller, Jr., to fill the vacancy caused by the death of the said E. E. Higbee.

In pursuance of this appointment the appellant, duly qualified, entered upon the discharge of the duties of said office, and has continued therein until this time.

The next session of the Senate after said last mentioned appointment, began on the first Tuesday of January, 1891, and on the 6th day of January thereafter, James A. Beaver, being still governor, nominated the appellant to the Senate for confirmation as Superintendent of Public Instruction, for the term of four years, to date from the 1st day of March, 1890, and on the 20th day of January, following, the Senate as provided by the Constitution, confirmed such nomination and appointment.

On the same day, to wit:-January 20, 1891, the term of office of the said James A. Beaver, as Governor, expired, and Robert E. Pattison was duly inaugurated as his successor, and entered upon the duties of that office.

Notwithstanding the nomination and confirmation of the appellant as stated, no commission was or had been, at the inception of the writ in this case, issued to him by the said Robert E. Pattison, as Governor aforesaid.

The Senate continued in session until the 28th day of May, 1891, and on the 27th day of May, immediately preceding their adjournment, the said Robert E. Pattison nominated to the Senate one Z. X. Snyder, to be Superintendent of Public Instruction, for the term of four years, from June 1, 1891, which nomination the Senate, immediately before its adjournment, on May 28, 1891, rejected.

On the 29th day of May, 1891, being the next day after the adjournment of the Senate as aforesaid, the Governor appointed and commissioned the same Z. X. Snyder to be Superintendent of Public Instruction, from that date until the end of the next session of the Senate, which will begin on the 1st Tuesday of January, 1893. No appointment or commission to said office other than that issued to the said Z. X. Snyder had been made or issued by the said Governor since the adjournment of the Senate.

On this state of facts a writ of Quo Warranto was issued by the Court of Common

Pleas of Dauphin County, at the instance of the Attorney General, on the 30th day of June, 1891, calling upon the said D. J. Waller, Jr., to show by what warrant he held and exercised the duties of the office of Superintendent of Public Instruction.

SUGGESTION FOR WRIT OF QUO WARRANTO. And now, June 30, 1891, comes W. U. Hensel, Attorney General of the Commonwealth, into Court, and gives the Court here to understand and to be informed:

1. That one D. J. Waller, Jr., of the city of Harrisburg, in the county of Dauphin, Pennsylvania, hath since the 28th day of May, 1891, used and exercised, and still doth use and exercise the office of Superintendent of Public Instruction in and for the Commonwealth of Pennsylvania, under color of a commission for said office issued to him by Hon. James A. Beaver, Governor of Pennsylvania, and dated February 14, 1890, and to be computed from March 1, 1890, and which commission continued and remained in force, by its own terms, and according to law, only until the end of the next session of the Senate of the Commonwealth of Pennsylvania, and for no longer time.

2. That the next session of the Senate of the Commonwealth of Pennsylvania, mentioned and referred to in the commission of the said D. J. Waller, Jr., terminated on the 28th day of May, A. D. 1891.

3. That during the recess of the Senate, to wit: On the 29th day of May, A. D. 1891, the Hon. Robert E. Pattison, then Governor of the State of Pennsylvania, by virtue of the power vested in him by the Constitution and laws of this Commonwealth, commissioned Z. X. Snyder as Superintendent of Public Instruction, in and for the Commonwealth of Pennsylvania, the commission to compute from the 29th day of May, 1891, and to continue until the end of the next session of the Senate of the Commonwealth of Pennsylvania, which session has not yet convened. That the said Z. X. Snyder accepted his said commission and qualified for the duties of said office, and on the 3d day of June, A. D. 1891, demanded possession of the said office of Superintendent of Public Instruction in and for the Commonwealth of Pennsylvania | from said D. J. Waller Jr., who refused, and still refuses to deliver the same to him.

4. That since the 3rd day of June, A. D. 1891, the said D. J. Waller, Jr., hath used and exercised, and still doth use and exer

cise the said office of Superintendent of Public Instruction in and for the Commonwealth of Pennsylvania without any warrant or lawful authority therefor, which colorable office, and the powers, authorities, emoluments, and franchises thereto so belonging and appertaining, the said D. J. Waller, Jr., during all the time aforesaid, hath usurped, and still doth usurp, upon the government of said Commonwealth, to the great damage and prejudice of the lawful authorities of the same and contrary to law.

WHEREUPON, the said Attorney General makes a suggestion and complaint herein, and for due process of law against the said D. J. Waller, Jr., in this behalf to be made to answer by what warrant he claims to have, exercise, use and enjoy the said office. W. U. HENSEL, Attorney General.

ISSUE OF THE WRIT.

June 30, 1891. Writ of Quo Warranto ordered to be issued as prayed. Returnable forthwith by consent. By the Court. J. W. SIMONTON, P. J.

PLEA OF DR. WALLER.

And now, June 30, 1891, comes before the said Court the said D. J. Waller, Jr., and having heard the information, complains that he is by color thereof grievously vexed, and this unjustly, yet for plea thereof in this behalf he says:

First, That it is true that he, the said D. J. Waller, Jr., hath since the 28th day of May, A. D. 1891, used and exercised, and still doth use and exercise the office of Superintendent of Public Instruction in and for the said Commonwealth, as set forth in said information, but he avers that he also held and exercised the said office prior to the said last mentioned date, by virtue of an appointment duly made under the Constitution and laws of this Commonwealth, and hath continued to use and exercise said office uninterruptedly from the date thereof, to the present time, as hereinafter more particularly set forth.

Second, That by virtue of the power vested in James A. Beaver, then Governor of the State of Pennsylvania, he did, on the 13th day of May, A. D. 1889, by and with the advice and consent of the Senate of Pennsylvania, appoint E. E. Higbee, Superintendent of Public Instruction, in and for the said Commonwealth, for the term of four years from the first day of April, A. D. 1889, and the said E. E. Higbee did by

virtue of said appointment enter upon the duties of said office.

Third. That the said E. E. Higbee continued to discharge the duties of said office of Superintendent of Public Instruction from the time of his said appointment until the 13th day of December A. D. 1889, when he died, and thereby a vacancy happened in said office.

Fourth. That at the time of the death of the said E. E. Higbee, the Senate of the State of Pennsylvania was not in session, and this recess of the Senate continued until the first Tuesday of January, A. D. 1891, being the 6th day of January, A. D. 1891. Fifth. That by the 8th Section of Article IV of the Constitution of Pennsylvania, it is provided as follows:

SECTION 8. He shall nominate, and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint a Secretary of the Commonwealth and an Attorney-General during pleasure, a Superintendent of Public Instruction for four years, and such other officers of the Commonwealth as he is or may be authorized by the Constitution or by law to appoint; he shall have power to fill all vacancies that may happen in offices to which he may appoint, during the recess of the Senate, by granting commissions which shall expire at the end of their next session; he shall have power to fill any vacancy that may happen, during the recess of the Senate, in the office of AuditorGeneral, State Treasurer, Secretary of Internal Affairs, or Superintendent of Public Instruction, in a judicial office, or in any other elective office which he is or may be authorized to fill; if the vacancy shall happen during the session of the Senate, the Governor shall nominate to the Senate, before their final adjournment, a proper person to fill said vacancy; but in any such case of vacancy, in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be at the second succeeding general election.

Sixth. That during the said recess of the Senate, to wit, on the 14th day of February, A. D. 1890, the said James A. Beaver, then Governor of the State of Pennsylvania, by virtue of the power and authority vested in him by the Constitution and laws of this Commonwealth, appointed the said D. J. Waller, Jr., to be Superintendent of Public Instruction, to fill the said vacancy for the constitutional term then next ensuing.

Seventh. That while it is true, that a commission was issued to the said D. J. Waller, Jr., which by its terms purported to be computed from the first day of March, A. D. 1890, and to continue until the end of

the next session of the Senate of the Commonwealth of Pennsylvania, the appointment evidenced by said commission was made by the said Governor, to fill such term or time as the Constitution and laws of this Commonwealth prescribe as the limit for which the Governor then had power to appoint, and said appointment operated to fill such vacancy, notwithstanding the language of the commission may have purported to limit the time of occupancy to a less period than that for which the Governor was authorized and required legally to appoint.

Eighth. That by Section 8, Article IV, of the Constitution as herein before set forth, the Governor was authorized to appoint a suitable person to fill the vacancy caused by the death of the said E. E. Higbee, and such vacancy occurring, and the appointment having been made during the recess of the Senate, was valid and operative for the full constitutional term then ensuing upon the death of E. E. Higbee, without the consent and advice or any action on the part of the Senate.

Ninth. That upon the assembling of the Senate at its next session thereafter, to wit: upon the 6th day of January, A. D. 1891, the said James A. Beaver, then Governor of the State of Pennsylvania, further nominated to the said Senate, for confirmation, the said D. J. Waller, Jr., to be Superintendent of Public Instruction, for the term of four years, from the 1st day of March, 1890, being the date on which said Waller entered upon the said office under the appointment hereinbefore set forth, and upon the 20th day of January, A. D. 1891, at the same session of the Senate, the said D. J. Waller, Jr., by and with the advice and consent of twothirds of all the members of the Senate, was confirmed as such Superintendent of Public Instruction, for the term for which he was nominated as aforesaid.

Tenth. That upon the said 20th day of January, A. D. 1891, and immediately prior to said confirmation by the Senate, as aforesaid, the term of office of the said James A. Beaver as Governor having expired, Robert E. Pattison was duly inaugurated as Governor of this Commonwealth.

Eleventh. That thereupon the said Robert E. Pattison, then Governor of Pennsylvania, recognized and accepted the nomination and confirmation of the said D. J. Waller, Jr., as aforesaid, withheld the commission evidencing such appointment, because of the pressure of other public duties, and in order to determine the question whether it should be issued for the full term

of four years, or for the unexpired portion thereof, as stated by him to the said D. J. Waller, Jr., and others.

Twelfth. That it is true that afterwards, to wit: on the 29th day of May, 1891, the said Z. X. Snyder was appointed by the said Robert E. Pattison, then Governor, to be Superintendent of Public Instruction, and a commission was thereupon issued to him, purporting to expire at the end of the next session of the Senate; but this respond. ent avers that the said Robert E. Pattison, Governor, as aforesaid, had previously during the session of the Senate immediately preceding said last mentioned appointment, to wit: upon the 27th day of May, A. D. 1891, nominated to the Senate the said Z. X. Snyder to the said office of Superintendent of Public Instruction, for the term of four years, to be computed from the 1st day of June, A. D. 1891, and on the 28th day of May, A. D. 1891, the Senate, then being in session, and having considered the same, refused to advise or consent to the nomination and appointment so made, and the said nomination was thereupon rejected by the Senate.

Thirteenth. That by reason of said nomination by the said Governor, and the rejection thereof by the Senate, the Senate having refused to advise or consent to said nomination, the said Z. X. Snyder was not eligible to appointment as such Superintendent of Public Instruction, nor was the Governor legally authorized to make any appointment to such office, after the adjournment of the Senate and during the succeeding recess thereof, under the Constitution and laws of this Commonwealth.

Fourteenth. That by reason of the prem ises, and no valid appointment having been made to said office of Superintendent of Public Instruction, after the death of E. E. Higbee as aforesaid, other than that of the said D. J. Waller, Jr., as herein before set forth, the said D. J. Waller, Jr., legally holds, uses and exercises the said office, under the Constitution and laws of this Commonwealth, and is entitled to exercise and enjoy all the franchises, rights and privileges appertaining thereto, all of which he is ready to verify, without this, that he, the said defendant, had usurped the said office, liberties, privileges, and franchises, or any part thereof, in manner and form as in the said information is above supposed.

Wherefore he prays judgment, and that the said office, liberties, privileges, and franchises aforesaid claimed by him may be adjudged and allowed him, and that he may

DEMURRER AND REPLICATION.

And the said Attorney General, who prosecutes for the Commonwealth in this behalf, having heard the plea of the said D. J. Waller, Jr., in manner and form aforesaid, above pleaded in bar to the said suggestion for the said Commonwealth, says, that by reason of anything in that plea alleged, the said Commonwealth ought not to be barred from having the said suggestion against the defendant, because protesting that the said plea and the matters therein contained are not sufficient in law to bar the said Commonwealth from having the aforesaid suggestion against the said defendant, to which plea in manner and form above pleaded, the said Attorney General is under no necessity, nor in any way obliged by the law of the land to answer:

For replication, the said Attorney General says that the said Robert E. Pattison, then Governor of Pennsylvania, did not recognize and accept the nomination and confirmation of the said D. J. Waller, Jr., as set forth in Paragraph 11 of the said plea, but at all times refused to recognize and accept the nomination and confirmation of the said D. J. Walller, Jr., and refused to appoint and to issue any commission to the said D. J. Waller, Jr., as Superintendent of Public Instruction of the Commonwealth of Pennsylvania.

And the said Attorney General further says that said defendant, since the 28th day of May, 1891, was not authorized and entitled to take upon him and exercise and enjoy the said office of Superintendent of Public Instruction in and for the Commonwealth of Pennsylvania, and exercise the franchises, rights and privileges thereunto belonging and appertaining within the said Commonwealth.

Wherefore, and for want of a sufficient plea in this behalf, the Commonwealth prays judgment upon her suggestion and writ of quo warranto.

W. U. HENSEL,
Attorney General.

Filed June 30, 1891.

OFFER OF TESTIMONY EXCLUded. On the trial of the above stated cases, the