The relator's petition alleges that "on the 30th day of March, 1943, and prior thereto there existed a vacancy as to one of the members of said Board of Control". The period during which such vacancy existed is not stated in the petition, nor in the demurrer or answer of the respondent. Inquiry at the bar of the court, on the oral argument, disclosed that such vacancy had existed on and after May 24, 1942, and the following stipulation, signed by counsel for the petitioner and the respondent, was made.
"It is stipulated and agreed by and between counsel for plaintiff and counsel for defendant, and by leave of the Court made a part of the record in this case, as follows:
"A vacancy occurred in the membership of the West Virginia Board of Control on the 24th day of May, 1942, and no person was designated by the Governor as an appointee to fill such vacancy until the 30th day of March, 1943, on which date the plaintiff herein, Wm. W. Downey, was by the Governor designated as an appointee to fill such vacancy.
This 20th day of April, 1943."
This is the stipulation mentioned in the concluding paragraph of the majority opinion, and which the majority refuse to consider. However, that refusal does not alter the facts therein stated.
I assume that we are warranted in taking judicial notice of the fact that the Senate of the State of West Virginia was in regular session from the 13th day of January, to the 13th day of March, 1943, both inclusive, and that no nomination to fill the vacancy in the Board of Control, existing during such period, was submitted by the Governor to the Senate while it was in session.
The question of whether or not, independent of the action of the Legislature in enacting Senate Bill No. 22, Chapter 52, Acts of the Legislature, 1943, the Governor had the constitutional power in the circumstances, to make *Page 639 the appointment of the relator is a highly important one, and in my judgment the most important question arising in this proceeding. It should be faced with courage and answered in like fashion. If a mandatory duty, imposed by the Constitution upon the Governor of this State, may be disregarded, and rights asserted which grow out of such disregard, and the same be established, as, in my judgment would be the result of awarding the writ in this proceeding, the public is entitled to know on what grounds we base our decision, and it is not a question which should be evaded upon any technical point, such as a failure to raise the question on the pleadings. The question has been raised outside of the pleadings. Every member of this Court, and every informed citizen of the State, knows, from the stipulation filed, and which purports to be a part of the record, that the Governor made no appointment to fill the vacancy in the Board of Control after May 24, 1942, and prior to the convening of the Senate in January, 1943; and did not make a nomination for said vacancy while the Senate was in session. This much is known by reference to the stipulation quoted above, and from the judicial knowledge which may be taken of the public records of the Senate. I know of no law, rule or practice which prevents a court from bringing out into the open the full truth as it may affect questions of high public interest, such as I conceive this to be. It is not uncommon that matters are stipulated in private litigation and such stipulations considered as though the facts stated therein appeared in the formal pleadings and proofs presented to the court. If this be true there is still greater justification for such practice in public matters. And, may I ask, who are we to say that what the parties have agreed and stipulated may be treated as a part of the record shall not be so treated, and thus arbitrarily refuse to consider the most far reaching and important question here involved. Holding this view, I purpose, first, to take up the question of whether under the Constitution, and independently of the enactment of Senate Bill No. 22, the Governor had the constitutional power to fill the vacancy in the Board of Control by the *Page 640 appointment of the relator, after the final adjournment of the State Senate.
I assume that it will be conceded that to entitle the relator to the relief prayed for in his petition he must show a clear legal right thereto. Smith v. County Court, 78 W. Va. 168,88 S.E. 662, 20 A.L.R. 1030; State v. Spencer, 93 W. Va. 516,117 S.E. 226; State v. Kuhn, 94 W. Va. 415, 120 S.E. 888; Hall v. Stepp, 105 W. Va. 487, 143 S.E. 153; State v.Road Commission, 108 W. Va. 41, 151 S.E. 319; Koebert v.Clarksburg, 114 W. Va. 406, 171 S.E. 892; Wells v. RoadCommission, 114 W. Va. 709, 173 S.E. 576; Brumfield v. Board ofEducation, 121 W. Va. 725, 6 S.E.2d 238; Ebert v. Bouchelle,123 W. Va. 265, 14 S.E.2d 614. I contend that the facts stipulated show conclusively that the appointment of the relator was illegal and void, and, therefore, that he is not entitled to hold the office to which his alleged appointment relates.
On March 30, 1943, the relator was allegedly, appointed by the Governor as a member of the Board of Control, an office created by the Legislature. As stipulated, said appointment was made to fill a vacancy which occurred on the 24th day of May, 1942, more than ten months prior to the date of the alleged appointment. We take judicial notice of the fact that the regular session of the Legislature of 1943 convened on the 13th day of January, 1943, and remained in session for sixty days. It is stipulated that no appointment was made by the Governor to fill the vacancy which occurred on May 24, 1942, until March 30, 1943, and we know from the records of the State Senate that no nomination for said office to fill such vacancy was submitted to the Senate while it was in session. Therefore, the question of the right of the Governor to make the appointment under which relator's claim is presented, is squarely presented; for, if the Governor was without constitutional power to make the appointment, the relator has no right to occupy the office in question, and no right to the salary attached thereto. This question arises independently of Senate Bill No. 22, and could have been raised had such bill not been enacted, although the Act does, in *Page 641 effect, if not directly, provide a legislative construction of the constitutional provision pertaining to the power of the Governor in respect to the nomination or appointment of public officials.
Sections 8 and 9 of Article VII of the Constitution of this State read as follows:
"8. The Governor shall nominate, and by and with the advice and consent of the Senate, (a majority of all the Senators elected concurring by yeas and nays) appoint all officers whose offices are established by this Constitution, or shall be created by law, and whose appointment or election is not otherwise provided for; and no such officer shall be appointed or elected by the Legislature.
"9. In case of a vacancy, during the recess of the Senate, in any office which is not elective, the Governor shall, by appointment, fill such vacancy, until the next meeting of the Senate, when he shall make a nomination for such office, and the person so nominated, when confirmed by the Senate, (a majority of all the Senators elected concurring by yeas and nays) shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified. No person, after being rejected by the Senate, shall be again nominated for the same office, during the same session, unless at the request of the Senate; nor shall such person be appointed to the same office during the recess of the Senate."
A careful reading and study of these sections of our Constitution, when considered together, should convince any fair minded person, that the intent of the framers of said instrument was, first, to vest in the Governor what is termed the appointing power, in all cases not otherwise provided for; but to place a restriction on such power in this: That as to all offices, the appointment of which requires the advice and consent of the Senate, the Governor could only nominate in the first instance, and could only appoint after the Senate had consented thereto; and, second, that during a session of the Senate it should be *Page 642 the duty of the Governor to submit all nominations for so-called confirmation, is too clear to justify discussion. Even where an appointment to fill a vacancy is made under Section 9, the Governor is required, at the next session of the Senate, to submit a nomination, and if he does not, the recess appointment counts for nothing. This being true, and I dare say it will not be disputed, how can it be contended that it was not the plain mandatory duty of the Governor to submit to the 1943 session of the Senate a nomination for the then existing vacancy in the Board of Control. If, at any time after May 24, 1942, he had made an appointment to fill such vacancy, that appointment would have had no effect upon the adjournment of the next session of the Senate. Could the Governor, then, re-appoint the same person on the theory of a new vacancy or a continuance of the old one? Had he submitted the nomination of his appointee to the Senate for the unexpired term, and that nomination had been rejected, then under the Constitution he could not have re-appointed him. Can the Governor evade or violate the terms of the Constitution and still retain the right of appointment? To say he can do so is to lose sight of all legal and moral restraints which high officials should feel obligated to regard. If the Governor can do this as to one office, why not as to all? If a governor can refuse to submit to the Senate a nomination, in the middle of his term of office, as to one office, why can he not refuse as to all where vacancies have occurred by resignation or otherwise, in the recess of the Senate, and then after the Senate adjourns, fill the various offices by appointments which will hold for the balance of his term, and thus deprive the Senate of its constitutional right to advise and consent to appointments to office requiring Senate confirmation.
But it may be said that no governor will ever again violate, in this respect, the spirit and intent, and the express provisions of the Constitution. Without intending to reflect upon the motives of the Governor, I can only say that it has happened as to one vacancy and as to one office, and if we permit this action to pass unchallenged, who *Page 643 can say that it may not happen again, and in an exaggerated form? Great and widespread abuses in government often have their beginning in single and relatively unimportant departures from correct principles and practices. The time to scotch evil is when it first raises its head.
To this point I have dealt with the duty of the Governor to submit appointments to the Senate, at the first opportunity after the term of an official has expired, or a vacancy for any cause has happened. In such event recess appointments may be made, an appointment which carries with it the full power of the office; not merely a nomination to which the Senate may advise and consent, or, on the other hand, reject. But this appointment is only effective until the next session of the Senate. Then a nomination must be made, and the right of the Senate to approve or reject attaches.
When may the Governor make this appointment? For an answer to this question we must go to the Constitution. He has no inherent power of appointment, and this, in my opinion is the key to the question before us. 12 C. J. 898, 16 C.J.S. 509, 24 Am. Jur. 826, 42 Am. Jur. 951-981; Heyward v. Long,178 S.C. 351, 183 S.E. 145, 114 A.L.R. 1130; State v. Bowden,92 S.C. 393, 75 S.E. 866. Our Constitution, Section 8, Article XII, negatives the idea of any inherent appointive power in the Governor, but confines such power to cases where the appointment or election of an official is "not otherwise provided for". He has the power of appointment to fill a vacancy during the recess of the Senate, even though the statute may not, in terms, confer the right as to a particular office. Brandon v. Board of Control, 84 W. Va. 417,100 S.E. 215.
Section 9, Article VII of the Constitution provides: "In case of a vacancy, during the recess of the Senate, in any office which is not elective, the Governor shall by appointment, fill such vacancy, until the next meeting of the Senate, when he shall make a nomination for such office * * *". Note that the Constitution says he "shall" make an appointment, and "shall" make a nomination. What would happen if he made the appointment, and then *Page 644 failed to make a nomination, is discussed above, and evidently it was never contemplated that a Governor would ever fail to do either, first, because of the mandatory requirements of the Constitution and second, because of the public interest and advantage in having public offices filled at all times. It may be assumed that offices are created by the Legislature, and certain functions of government attached thereto, with the idea that they shall be occupied and not left vacant at the discretion of the executive. But a vacancy existing, a governor has failed to make a nomination to fill the same, at a session of the Senate following the happening of the event creating the vacancy, then after the Senate adjourns, has attempted to make an appointment to fill the vacancy which he could and should have attempted to fill by making a nomination when the Senate was in session. A situation which reasonable men had the right to feel never could arise now confronts us, and it must be dealt with as its importance merits. I am not so much concerned as to who occupies the office of a member of the Board of Control. All should be concerned that a sound precedent for the future is established.
I contend that, under the Constitution the Governor's power of appointment, as distinguished from his power to nominate, and then, with the advice and consent of the Senate to appoint, only extends to such vacancies as occur during the recess of the Senate, and continues only until the next session of the Senate, when he must make a nomination for the same office so filled by his appointment. The vacancy in the Board of Control having occurred on May 24, 1942, the Governor had the right to fill the vacancy until the meeting of the Senate in January, 1943, at which time it was his duty to make a nomination. Not having done so at the opening session of the Senate, nor at any time during its sixty days session, he lost the right to make the appointment to the said office after the Senate adjourned. Not having the legal power to appoint the relator, his appointment was and is invalid, and fails to furnish any basis of legal right to the office he claims or to its emoluments. *Page 645
The question is new in this State, but it has been considered in other jurisdictions. 42 Am. Jur. 982, states the general rule:
"Where an incumbent is entitled to hold over after the expiration of his term until his successor is chosen, it is generally held that a vacancy authorizing a recess appointment does not occur upon the mere expiration of the term. The power to make a recess appointment is usually confined to vacancies occurring during such recess, as distinguished from such as happen while the confirming body is in session. Thus the President has been denied the power to make a recess appointment to fill a vacancy occurring while Congress was in session, and a governor, it seems, may not during a recess of the senate fill a vacancy that existed while that body was in session. If the office is one which the governor may fill by appointment with the advice and consent of the senate, he may not make a recess appointment to fill a vacancy in it, unless he is empowered to do so by constitutional or statutory provision."
In Schenk v. Peah, (Fed. Cas. No. 12,451) 1 Dillon's Circuit Court Reports, 267, it was held "where an office was created and took effect during a session of the senate, and a subsequent session of Congress passed without the office being filled; held, that the President could not make a valid appointment to such office in the recess of the senate". That was a case arising under the Federal Constitution, which provides that the President: "shall have power to fill up all vacancies that may happen during the recess of the Senate" (Article II, Section 2). Our Constitution, Article VII, Section 9, provides that "in case of a vacancy during the recess of the Senate", the Governor shall appoint. The difference between the two provisions, if any, is a highly technical one, hardly sufficient to base a holding that an Act of the Legislature is unconstitutional. To the average mind they mean exactly the same thing. Additional authority for the proposition announced will be found in Mitchell v. Sohmer, 209 N.Y. 151,102 N.E. 593, 46 L.R.A. (N.S.) 1202; Heyward v. Long, supra; and *Page 646 extensive annotations in 17 Annotated Cases 1012, 46 L.R.A. (N.S.) 1202, 50 L.R.A. (N.S.) 337-359.
I am, therefore, of the opinion that at the date of the relators alleged appointment, the Governor was without constitutional power to make the same, and that, for that reason alone the writ prayed for should be denied. I think, however, that the other question presented, and which is discussed in the majority opinion, is entitled to consideration.
Confining the discussion to the pleadings, and ignoring the question raised by the stipulation, the case here presented involves the constitutionality of an Act of the Legislature, Senate Bill No. 22, enacted on the 16th day of February, 1943, and made effective from passage. The act was disapproved by the Governor, and again passed over the veto of the Executive on February 24, 1943. The provisions of the Act, which are now under consideration, read as follows:
"No person whose nomination for office has been rejected by the Senate shall be again nominated for the same office during the session in which his nomination was so rejected, unless at the request of the Senate, nor shall he be appointed to the same office during the recess of the Senate, nor shall he be appointed during the recess of the Senate in which his nomination was rejected, to any other office the nomination for which must be submitted to the Senate for confirmation. No appointee who resigns from any such office prior to confirmation, whose name has not been submitted for confirmation while the Senate is in session, shall be eligible, during the recess of the Senate, to hold any office the nomination for which must be confirmed by the Senate".
It is clear that the Legislature had in mind two separate and distinct purposes. One, to prevent the appointment by the Governor to any office requiring Senate confirmation, during the recess of the Senate, of any person who may have been rejected by the Senate while in session, to any other office, thus extending the restriction of the Governor's *Page 647 appointive power to that extent. And, second, to prevent the resignation of officials, and failure to submit nominations to fill vacancies created thereby, and thus prevent Senate confirmation of those persons whose nominations would, under ordinary circumstances be submitted to the Senate. In my opinion, even if we should hold that the Act, as to the first purpose, was an unwarranted restriction on the constitutional powers of the Governor, and, therefore, unconstitutional, such holding would not necessarily require the same holding as to the second mentioned purpose. This portion of the Act the majority opinion completely ignores.
I apprehend that there will be little dispute as to the rule which should control us in appraising the constitutionality of an Act of the Legislature. When the people by a State Constitution confer upon the Legislature all legislative powers, as we have done in West Virginia, not impose an unwarranted restriction on the constitu-Constitution, Article VI, Section 1, that power is absolute save and except as it may be limited by other provisions of the same constitution, or restricted by the delegated powers vested in the Federal Government under the Federal Constitution. The extent of legislative power, and its relation to both executive and judicial power, has not been more clearly stated than in the following quotation taken from Cooley's Constitutional Limitations, Eighth Edition, Volume 1, page 175, which reads:
"There are two fundamental rules by which we may measure the extent of the legislative authority in the States: —
1. In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The legislative department is not made a special agency for the exercise of specifically defined *Page 648 legislative powers, but is intrusted with the general authority to make laws at discretion.
2. But the apportionment to this department of legislative power does not sanction the exercise of executive or judicial functions, except in those cases, warranted by parliamentary usage, where they are incidental, necessary, or proper to the exercise of legislative authority, or where the constitution itself, in specified cases, may expressly permit it. Executive power is so intimately connected with legislative, that it is not easy to draw a line of separation; but the grant of the judicial power to the department created for the purpose of exercising it must be regarded as an exclusive grant, covering the whole power, subject only to the limitations which the constitutions impose, and to the incidental exceptions before referred to. While, therefore, the American legislatures may exercise the legislative powers which the Parliament of Great Britain wields, except as restrictions are imposed, they are at the same time excluded from other functions which may be, and sometimes habitually are, exercised by the Parliament."
Therefore, while a legislature may not encroach upon the constitutional powers of the executive department of the government, or the judiciary, nor, of course, interfere with powers delegated to the Federal Government, or violate rights vested in persons under the provisions of the State or Federal Constitution, its legislative powers are not otherwise limited. It is not required that its powers be enumerated in a state constitution. The grant of full legislative powers makes such enumeration unnecessary. As to the Federal Constitution the rule is different; there, the powers must be granted or necessarily implied.
That courts will not declare an act of the legislature unconstitutional except in cases where the legislature has clearly exceeded or misapplied its powers, seems to be settled law.
"It is an elementary principle that where the validity of a statute is assailed and there are two possible interpretations, by one of which the *Page 649 statute would be unconstitutional and by the other it would be valid, the court should adopt the construction which would uphold it. It is the duty of courts to adopt a construction of a statute that will bring it into harmony with the Constitution, if its language will permit. The duty of the courts so to construe a statute as to save its constitutionality when it is reasonably susceptible of two constructions includes the duty of adopting a construction that will not subject it to a succession of doubts as to its constitutionality, for it is well settled that a statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubt upon that score".
11 Am. Jur. 725.
For a full discussion of the rules which govern a court passing upon the constitutionality of a statute, see Cooley's Constitutional Limitations, Eighth Edition, Volume 1, page 332 to 358. In Osburn v. Staley, 5 W. Va. 85, 13 Am. Rep. 640, this Court held:
"While the Legislature is governed by the spirit of the Constitution, the courts cannot declare an Act of the Legislature invalid unless its invalidity is placed beyond a reasonable doubt. A reasonable doubt must be resolved in favor of the legislative action, and the Act be sustained. The courts must be guided by the express words of the Constitution, not by its opposed spirit. Whenever an Act of the Legislature can be so construed as to avoid conflict with the Constitution and give it force of law, such construction will be adopted by the courts".
This rule has never been departed from by this Court.State v. England, 86 W. Va. 508, 103 S.E. 400; State v. Furr,101 W. Va. 178, 132 S.E. 504.
Having in mind the broad scope of legislative power, and the reluctance of courts to interfere with legislative action, where it is possible to square such action with the Constitution, I am of the opinion that when the Legislature attempted to prevent the Governor from appointing *Page 650 to a public office, requiring Senate confirmation, any person who might theretofore have been rejected by the Senate, upon his nomination for an office other than the one to which it may be proposed to appoint him, it did not impose an unwarranted restriction on the constitutional power of the Governor to make recess appointments.
While it should be noted that this power of the Governor, properly exercised, is allowed to be so exercised without reference to the Senate, and the right of the Senate, to have a voice in the selection of public officials, is saved by the requirement, that, upon the convening of the Senate, the Governor shall make a nomination for the same office to which his recess appointment relates, I think it must be admitted that when the Legislature creates an office, it may prescribe how it may be filled, whether by election or appointment, and if by appointment, who shall appoint. The only limitation is that it cannot, itself, appoint. It can impose such terms and conditions upon the appointing power it creates as may seem expedient, so long as it is not arbitrary or unreasonable, and has some proper relation to the standing, qualification or eligibility of the proposed appointee, or to the duties of the office intended to be filled. At one time it was thought that citizenship, and the right to vote, was the sole necessary qualification to hold an office, except in cases where constitutional eligibility was defined, but since the decision in Thompson v. McAllister, 38 W. Va. 485, 18 S.E. 770, 24 L.R.A. 343, it has been the settled law in this State that the Legislature, in creating an office, or in providing for the election or appointment of county and municipal officers, may require qualifications and conditions of different characters, which requirements it may impose upon the appointive or elective power. For example, as to some offices within the appointing power of the Governor, he is required to provide for minority representation, based upon political party affiliations; in others, professional or business qualifications are required. These conditions and qualifications *Page 651 touching offices to be filled by appointment of the Governor, are set out in the Act creating the office and could, of course, be set up in any amendment thereto. Usually they relate to what may be termed public policy, or some supposed necessary qualification. So long as a Legislature does not act in a clearly unreasonable and arbitrary manner, it may impose any qualification or conditions it desires upon the right to hold, or the power to appoint to, any office it creates; and it has the absolute power at all times to abolish any office it has created. That which it creates, it can destroy.
If the Legislature may exercise these powers, through legislative action in creating an office, and the Governor possesses no inherent power of appointment, why can it not, by general law, impose conditions upon the right of the Governor to make appointments during the recess of the Senate. If the Legislature, when it created the Board of Control, and empowered the Governor to appoint the members thereof, subject to Senate confirmation, had at the same time attached a condition thereto that no person who had been rejected by the Senate for that or any other office, could be nominated or appointed to said Board, I think it clear that the Governor would have been bound thereby, and I think the Act creating the Board could be amended by the Legislature and that condition imposed. If this be true, it is difficult to find a reason for saying that the Legislature may not, by general law, applying to all offices requiring Senate confirmation, impose such conditions upon the Governor's power to appoint.
It may be said that the restriction attempted to be imposed upon the Governor's power to appoint by Senate Bill No. 22 is arbitrary and unreasonable. It is pointed out that a person nominated by the Governor for one office may not, in the opinion of the Senate, possess the necessary qualifications for that particular office although he may possess all of the necessary qualifications for another and different office; and, therefore, that it is unreasonable to disqualify citizens of the State from holding any office, requiring Senate confirmation, if he has *Page 652 been unfortunate enough to have been rejected by the Senate as to some other position. There is reason and force in this contention. On the other hand, who can say, in a particular case, that Senate rejection was not brought about by its belief that the person rejected was not of the class or type who should be permitted to hold any State position. By this observation it is not intended to suggest that the Senate action, in rejecting the relator, was based upon any such basis. However, I do not think that the Legislature went beyond its constitutional power in enacting the statute in question merely because, in a few instances, and for a limited time, citizens who have been nominated for office and rejected by the Senate should not be considered for certain appointments until the next session of the Senate. There is nothing in the Constitution which would prevent the submission, at the next session of the Senate, of the relator's name to the same office for which he was rejected, or to any other office requiring Senate confirmation. The Act in question does not in any wise encroach upon the power of the Governor, at the next session of the Senate, to nominate any person to any office coming within his power to appoint.
Public interest may be said to be involved and in seeing that public offices are kept occupied. This is true. There may not be another session of the Senate until January, 1945, in which event the vacancy in the Board of Control cannot be filled, and public interest may suffer thereby. The fact that this department of the State Government was permitted to go along for some ten months without a full Board, argues that no great public interest will suffer if the existing vacancy is suffered to continue. Be this as it may, I think a higher public interest will be served, by adhering to the constitutional provision which requires any chief executive to submit to the Senate for confirmation all vacancies in public office existing during a Senate session. The present controversy involves a single person, and, regrettable as it may be, a consideration of his personal interest in this litigation should not *Page 653 be permitted to stand in the way of the pronouncement of a public policy for the years to come.
That part of the Senate Bill No. 22, which attempts to guard against any evasion of the Senate's right to pass upon the nominations of public officials, through the resignation of such officials before or during a session of the Senate, and their appointment to the same offices after the Senate has adjourned is, to my mind, a correct interpretation of the constitutional provisions covering the appointive power of the Governor. At some time in the future, when as is possible, political passions may run high, and the chief executive of the State may be at war with the Legislature, and particularly the State Senate, and the Governor could escape submitting the names of his appointees to the Senate by such a device as accepting their resignations, before or while the Senate was in session, and, after its adjournment, make re-appointments of the same person to the same office, practically the entire term of a Governor could pass without the Senate ever having an opportunity to advise and consent to any appointments which the Governor might make. Clearly such purpose was never intended, and the pertinent provisions of the Act in question do nothing more than prevent such a situation.
In my opinion Senate Bill No. 22 enacted by the Legislature of West Virginia at its recent session is constitutional, and the respondent was well advised in refusing to recognize relator's appointment as a member of the Board of Control as legal and valid. I would deny the writ prayed for.
I am authorized to state that Judge Cunni concurs, in principle, with the views expressed in this dissent, but reserves the right to file a memorandum touching points not discussed herein.