concurring. I am in general agreement with the majority opinion except for its apparent conclusion that Section 21 of Article III of the Ohio Constitution does not provide for Senate participation in the appointive process. However, in my opinion, it is not necessary to determine whether it does or does not provide for such Senate participation.
The second sentence of the second paragraph of Section 21 is dispositive of this case, except as to the 13 days prior to February 24,1965.
We all agree that on February 24, 1965, the Senate effectively refused to advise and consent to Gould’s appointment. The second sentence of paragraph two of Section 21 reads:
“* * * If the Senate has acted upon any appointment to which its consent is required and has refused to consent, an appointment of another person shall be made to fill the vacancy.”
Thus, when the Senate refused to consent to Gould’s appointment, there was a “vacancy.” The words of the Constitution are susceptible of no other interpretation. A vacancy in the office is wholly irreconcilable with Brothers’ being in the office.
State, ex rel., v. Howe (1874), 25 Ohio St. 588, 18 Am. Rep. 321, involved an interpretation of Sections 2 and 3 of Article VII of the Constitution as adopted in 1851. Section 2 provides that certain officers “shall be appointed by the Governor, by [Section 21 of Article III omits “by”] and with the advice and consent of the Senate; ’ ’ and Section 3 gives the Governor “power to fill all vacancies” in such offices “until the next session of the General Assembly, and, until a successor to his appointee shall be confirmed and qualified.” This court held that there would be no vacancy in an office within the meaning of Section 3 if there was an incumbent in the office to hold over until a successor was appointed with consent of the Senate.
This case involves an interpretation of Section 21 of Article III of the Constitution as adopted in 1961.
Section 21 contains no provision specifically relating to “vacancies” such as Section 3 of Article VII. The only mention of a vacancy in Section 21 is the one quoted above from the second paragraph thereof.
Unlike in Section 3 of Article VII, there is nothing in Sec*117tion 21 limiting the effectiveness of an appointment prior to Senate consent to a situation where a vacancy exists.
The fourth paragraph of that section does provide that “if an appointment is made after the Senate has adjourned sine die, it shall be submitted to the Senate during the next session of the General Assembly.”
If Section 21 is given the construction suggested by the dissenting opinion (i. e., requiring Senate consent before an appointment can be effective) and unless the fourth paragraph is interpreted to authorize a recess appointee to a vacancy to serve until the Senate reconvenes, intolerable results might follow.
. For example, if two members of the Board of Tax Appeals should die and the Senate was not in session or should neglect to act upon the Governor’s appointees to fill the vacancies, the Board of Tax Appeals would be unable to function. The same situation might arise with respect to the Public Utilities Commission. These and other organizations cannot function at all without at least a majority of incumbents.
In my opinion, the fourth paragraph of Section 21 was intended to provide for recess appointees who could function in office until the Senate refused to confirm them. I find nothing in Section 21 to indicate an intention that the appointments 'dealt with in the third paragraph of that section should be less effective before Senate action than recess appointments made under the fourth paragraph.
The exception in the third paragraph indicates an intention that appointees thereunder should be treated the same as the recess appointees dealt with in the fourth paragraph. The last sentence of Section 21 fortifies the conclusion that the Senate’s power is limited to rejecting an appointee of the Governor and cannot prevent the appointment from being effective before consent to the appointment has been given.
The general provisions of the first paragraph of Section 21, validating, ratifying and confirming previous statutory provisions requiring advice and consent, would of course be controlled by the specific requirements in the subsequent portions of Section. 21.
Schneider, J., concurs in the foregoing concurring opinion.