I concur. I also concur in what is said in the opinion of the CHIEF JUSTICE relative to the reason for the enunciated rule and in regard to defendant's contention that there was an implied ratification of his nomination or a "continuing consent" by the Senate to a "continuing nomination" by the Governor. The theory of implied ratification and that of continuing consent — where the Senate after purported approval failed to repudiate its action by formal vote — would apply, it seems, in a case where the nomination and attempted consent and approval preceded passage by the Legislature of a bill creating an office as well to one in which the bill had been passed by the Legislature but had not at the time of approval by the Senate of a nomination by the Governor been signed by the latter. If so, the adoption of either theory would tend to defeat the suggested reason for the rule. True, the Senate might in either instance negative implied consent and interrupt continuing consent by affirmative action. But it is better to apply the rule so as to require the Senate to give consent after the act becomes a law, than to apply it so as to require subsequent affirmative action on its part to prevent the possible consequences of a failure to comply with the rule. *Page 446
The fact that the Governor in the instant case had, at the time of submission of the nomination, the sole power to decide whether the bill was to become a law by virtue of his approval or be vetoed, is not, as the CHIEF JUSTICE suggests, a reason for modification of the rule. If the Governor might withhold approval of a bill until his nominee is confirmed by the Senate there would be placed in the hands of the Chief Executive a power of coercian in the approval of such appointments not contemplated by the Constitution of this State. This last observation is made, of course, with complete confidence that it was not so used here and with concurrence in the statement in the opinion of the CHIEF JUSTICE that the Governor and the Senate acted in good faith and for a good purpose.