(concurring).
I am in accord with the majority opinion but I believe that the Court has gone toó far in holding that the Governor’s right to nominate and make prospective appointments extends to the filling of all vacancies in public office which are sure to occur during the term of office of the Governor and the members of the Senate.
It is my view that the Governor’s appointive power to fill vacancies under the Constitution and laws of this State does not and cannot arise until there is a vacancy in fact in the office and that ho power is conferred upon him to make a prospective appointment, save in a case like this, where a temporary appointment has been made, under Section 12 of Article 5 of the Constitution, which will expire at the end of the session of the Senate by reason of the Governor’s failure to send the name of the temporary appointee to the Senate for confirmation.
It is true that some of the courts of this country have approved prospective appointments to public office in cases where it appeared that the vacancy was sure to occur during the term of the executive. The majority opinion quotes 67 C.J.S., Officers, § 30, page 159, wherein it is stated that such is the general rule to be applied in the absence of a law forbidding it.
I respectfully disagree with this doctrine and the theory upon which it is founded. Without law countenancing the practice, authority to fill vacancies does not exist until there is a vacancy. Indeed, it strikes me that the courts upholding prospective appointments, on the reasoning that the law conferring the appointive power does not *33forbid its use in anticipation of the vacancy, were not applying the law as written but, rather, were indulging in the legislative function of redrafting the law so as to include the additional authority in the executive.
In the case at bar, however, Section 12 of Article 5 of the Constitution clearly contemplates, in my opinion, the regular appointment, during the session of the Senate and by and with its consent, of an Officer to fill the rest of the term of the original officeholder whose death or resignation, during the recess of the Senate, caused the. vacancy which has been temporarily filled by the Governor.
Accordingly, I respectfully concur.
Additional Opinion.
PER CURIAM.In'the event any misconception of what is stated in the opinion should arise out of what evidently caused the filing of a concurring opinion, we desire to make it clear that the ruling made concerning the power of the Governor to make prospective appointments is restricted solely and only to the power to fill such vacancies as occurred in the instant case, that is, those which are bound to occur at the adjournment of the Senate Session next following the appointment of the incumbent officer, at which .time, under the very wording of Sec. 12 of Art. 5 of the Constitution, his commission “shall expire.”
The authorities cited were used because-of their apparent persuasive force in cases; relating to prospective appointments but. certainly nothing that was said in the opinion was ever meant to convey the impression that the Constitution of this State authorized the Governor to make prospective-appointments to fill vacancies in any other cases save those relating to offices that were filled by recess appointments under Sec. 121 of Art. 5.