dissenting.
I respectfully dissent. For reasons subsequently recited I would hold that Earl L. Manning had no right or authority on September 19, 1980, to issue a bank charter. Hence, I would reverse and remand the decision of the Circuit Court with directions.
It is clear that persons appointed as director of finance require senate confirmation. The position is created by § 361.040, RSMo which provides that such officer “shall be appointed by the governor by and with the advice and consent of the senate and shall hold his office at the pleasure of the governor.” (Emphasis added.)
This requirement of senate confirmation was affirmed and strengthened by art. IV, § 51 of the Missouri Constitution which was adopted by the people of Missouri at a special election on August 8, 1972. It provides, inter alia, that all department and division heads appointed by the governor “shall be made only by and with the advice and consent of the senate.” Section 51 then goes on to provide as follows:
The authority to act of any person whose appointment requires the advice or consent of the senate shall commence, if the senate is in session, upon receiving the advice and consent of the senate. If the senate is not in session, the authority to act shall commence immediately upon appointment by the governor but shall terminate if the advice and consent of the senate is not given within thirty days after the senate has convened in regular or special session. If the senate fails to give its advice and consent to any appointee, that person shall not he reappointed by the governor to the same office or position.
Finally, in 1974 the General Assembly adopted the Reorganization Act of 1974 part of which is now contained in Chapter 620, RSMo. Section 620.010(8) thereof provides as follows:
The powers, duties and functions vested in the division of finance, chapters 361, 362, 364, 365, 367, 408, RSMo. and others, are transferred by type II transfer to the department of consumer affairs, regulation and licensing. There shall be a director of the division who shall be nominated by the department director and appointed by the governor with the advice and consent of the senate.
Thus, at the times involved in this proceeding, it is very clear that the division of finance was located in the department of consumer affairs, regulation and licensing and was headed by a director who was to be nominated by the department director and appointed by the governor with the advice and consent of the senate. Such appointment was subject to the provision in art. IY, § 51 of the Missouri Constitution that if, as here, the senate was not in session at the time of the appointment, the authority of the appointee should commence immediately but that such authority would terminate if the advice and consent of the senate was not given within thirty days after the senate convened in either regular or special session.
On August 31, 1979, Governor Teasdale accepted the resignation of Edgar H. Crist as director of finance. On September 5, 1979, he appointed Earl L. Manning to serve as acting director, until a permanent director of finance could be appointed and qualified. Thereafter, Manning continued to serve in that capacity but his appointment was never submitted to the senate for its advice and consent although the senate met in both special and regular session during the time Manning was exercising the authority of director of finance. On September 19, 1980, more than a year after his appointment, he issued the bank charter in question to the First Missouri Bank of Washington.
In holding that senate confirmation of Mr. Manning was unnecessary and that he had authority to issue the bank charter on September 19, 1980, the principal opinion relies on art. IV, § 4 Mo. Const, which says *491that “[t]he governor shall fill all vacancies in public offices unless otherwise provided by law, and his appointees shall serve until their successors are duly elected or appointed and qualified.” The opinion concludes that to hold that senate confirmation of Manning as acting director was required would result in a conflict between sections 4 and 51 of art. IV whereby a constitutional power expressly granted to the Governor by § 4 would be repealed by implication. The majority goes on to say that the court should adopt “a construction that accommodates both sections 51 and section 4 of Article IV.” Such construction, the opinion says, “permits the Governor to appoint a person to fill a vacancy in office without the senate’s advice and consent so long as that appointment is expressed in terms of a temporary position.” The opinion offers the following explanation of the conclusion it reaches:
Such an appointee may serve until a permanent successor is selected by the governor and consented to by the senate. Art. IV, § 4. The temporary appointee cannot serve beyond the unexpired term of the original appointee whom he replaces, unless at the completion of that term his name is submitted to the senate for advice and consent. See e.g., State ex rel. Satterthwaite v. Stover, [35 Del. 85] 159 A. 239 (Del.1932). Otherwise, he would not be filling a vacancy but serving as a permanent appointee; Article IV, section 51, requires such appointments to be submitted to the senate for advice and consent.
I cannot agree that designation of Mr. Manning as “Acting Director of Finance” excused the requirement of senate confirmation. I so conclude for several reasons.
In the first place, the principal opinion bases and seeks to justify its conclusion on the premise that Manning was completing an “unexpired term” and that no senate confirmation was required so long as Manning did not serve beyond the completion of that unexpired term. However, the opinion neglects to address the question of what “term” Crist had been appointed for and what, if any, “unexpired term” remained at the time Manning was appointed. It simply assumes that an “unexpired term” existed when Manning was appointed and that it continued beyond the time when the bank charter was issued. In fact, there was no unexpired term remaining after Mr. Crist’s resignation. In accordance with the provisions of § 361.040, he had been appointed to serve at the pleasure of the governor, not for a fixed term of so many years, and when the governor accepted his resignation that term expired. One appointed to succeed him would be appointed for a new term lasting at the pleasure of the governor. Since there was no unexpired term for Manning to serve, application of the language of the principal opinion would require that senate confirmation be obtained because the opinion says “[t]he temporary appointee cannot serve beyond the unexpired term of the original appointee whom he replaced unless at the completion of that term his name is submitted to the senate for advice and consent.” Of course, Manning could serve until the expiration of thirty days of the first session of the senate after his appointment but his authority would cease at that time, under the provisions of art. IV, § 51, unless his name had been submitted to the senate and such appointment had received the advice and consent of the senate.
Secondly, even assuming the existence of an “unexpired term,” upholding Manning’s authority on the basis that under art. IV, § 4 Mo. Const, the governor may appoint someone as acting director who may serve without senate confirmation “until a permanent successor is selected by the governor and consented to by the senate” results in nullification of the very explicit provisions of art. IV, § 51. Both the history of the adoption of that amendment and the clear language of § 51 itself show that such an interpretation is not tenable.
When interpreting an amendment to the Constitution, it is proper to look to the prior state of the organic law and the conditions sought to be remedied by the amendment. Lovins v. City of St. Louis, *492336 Mo. 1194, 84 S.W.2d 127 (Mo. banc 1935). The record shows that on June 25, 1969, the attorney general issued Opinion No. 293 to Honorable Robert A. Young. In that opinion he expressed his official opinion that when a vacancy occurs in the office of director of a department, the governor, without the advice and consent of the senate, may designate an acting director who can perform the duties of that office until such time as the office is properly filled by a qualified person duly appointed. In other words, it said that the governor could do in 1969 precisely what he did here in 1979. In a subsequent session of the legislature, a proposed constitutional amendment was introduced and approved for submission to the people. (Senate Committee Substitute for House Joint Resolution No. 65 of the 76th General Assembly— Laws 1973 1st Ex. Sess. S.B. 1.) Senator Richard Webster testified that it was the issuance of Opinion 293 which prompted the introduction and enactment of this proposed constitutional amendment. This amendment was adopted by the people of Missouri as art. IV, § 51 Mo. Const, at a special election on August 8, 1972. Its language clearly shows that what Opinion No. 293 said could be done in 1969 was no longer to be permissible. Such intention was expressed in clear and detailed language which says that if a department head is appointed when the senate is not in session, he could serve in and exercise the authority of the office until the senate convenes and thereafter may continue so to act until the end of thirty days after the senate convenes. At that time, absent senate confirmation, his authority to act terminates. Furthermore, he cannot thereafter be reappointed by the governor to that office.
In spite of the explicit language of art. IY, § 51, and in spite of the evidence as to what prompted submission and adoption of that amendment, the principal opinion holds that Manning was authorized to remain in office and exercise the authority of the office through and after two sessions of the senate, in neither of which his appointment was confirmed. In such situation the principal opinion holds that he could perform all the functions of a department head for an extended period without ever being subjected to the scrutiny which is contemplated in a system wherein such appointments are to be made only with the advice and consent of the senate.
An even more flagrant nullification of art. IV, § 51, made possible by the principal opinion in this case, can be hypothesized. Suppose at the outset of his term a governor appoints a director of finance. The appointment is submitted to and confirmed by the senate. As soon as the legislature adjourns in June, the governor obtains a resignation from or removes the director of finance, who, of course, is serving at his pleasure. Section 361.040, RSMo. The governor then designates an acting director of finance to serve until a permanent director of finance can be appointed and qualified. The person so named was not appointed at the outset of the governor’s term because the Governor knew that such person could not and would not receive senate confirmation. Under the holding of the principal opinion, no senate confirmation of his appointment as acting director would be required. The principal opinion says that as acting director he could serve without senate confirmation “until a permanent successor is selected by the governor and consented to by the senate.” Assume that during the remainder of his term (more than three years) that governor never appoints anyone as permanent director of finance. The acting director would continue to serve during all of that time without his name ever going to the senate. As a result the provision in art. IY, § 51 for termination of the authority of an appointee as a department head if he does not receive senate confirmation is rendered ineffective. The philosophy of government embodied in our constitution that certain appointees must have senate confirmation as a prerequisite to their service is flaunted.
Surely it is clear that such scenarios were not what the General Assembly had in mind when in 1972 it voted to submit art. *493IV, § 51, to the voters of Missouri. Nor are they what the people intended when they approved that constitutional amendment on August 8, 1972. They certainly are not scenarios which would be permissible if the language of art. IV, § 51 is given its clear and unambiguous meaning and applied accordingly. The principal opinion in effect states to the Missouri senate that by judicial interpretation this Court is, in part, excising the constitutional and statutory requirement of senate confirmation of the director of finance imposed by art. IV, § 51 Mo. Const, and §§ 361.040 and 620.-010(8), RSMo. Such excising is accomplished by saying that the director is “acting” until the Governor sees fit to appoint someone else whom the senate confirms.
Finally, I do not find a conflict between art. IV, § 4 and art. IV, § 51 as does the principal opinion.
In State ex rel. Wayland v. Herring, 208 Mo. 708, 106 S.W. 984 (1907), this Court construed the predecessor to present art. IV, § 4 as providing for the filling of vacancies only “when no other provision is made by law.” Id. at 990. Present art. IV, § 4 expressly states that “[t]he governor shall fill all vacancies ... unless otherwise provided by law_” It is clear that appointment of all directors of finance is “otherwise provided by law.” Art. IV, § 51, adopted August 8, 1972, is a clear directive that the governor shall appoint all division and department heads only by and with the advice and consent of the senate. There is no exception to such provision of art. IV, § 51 anywhere in the Missouri Constitution or in the statutes providing the governor with power to appoint an “acting” director of finance. Nor is there any constitutional or statutory provision for appointing an “acting” director to serve indefinitely without advice and consent of the senate. Recognition of this limitation in § 4 on the power of the Governor to appoint eliminates the conflict between §§ 4 and 51 perceived by the principal opinion.
When the governor on September 5, 1972, designated Mr. Manning as “Acting” Director of Finance he could have named him instead as “Director” of Finance. As such he nevertheless would have been serving at the pleasure of the governor. If, subsequently, the governor found someone else whom he desired to appoint as director, he had the means and authority to accomplish that change. In other words, there was no necessity to name Manning as “Acting” Director to assure continuity in office or to provide flexibility if the governor later desired to appoint someone else. Of course, if Manning had been appointed as director, the governor would have been obligated, pursuant to art. IV, § 51 Mo. Const., §§ 361.040 and 620.010, RSMo. to submit his name to the senate for its advice and consent.
Even if it be assumed that a conflict exists between §§ 4 and 51, the solution proposed by the principal opinion is not the correct one. The test for determining whether conflict exists between two constitutional provisions is whether one provision prohibits what another permits or vice ver-sa, State ex inf. Ashcroft ex rel. Bell v. City of Fulton, 642 S.W.2d 617 (Mo. banc 1982). In such case the more recently adopted provision prevails over the earlier one if, in fact, any such conflict exists. Ederer v. Dalton, 618 S.W.2d 644 (Mo. banc 1981).
It is clear from the foregoing that Manning was without authority on September 19,1980, to grant the bank charter in question. Under the provisions of art. IV, § 51, when the senate convened in special session on December 3, 1979, it had thirty days in which to give its consent to the September 5, 1979, appointment of Manning. Such advice and consent not having been given, Manning’s authority terminated thirty days after December 3,1979. Article IV, § 51. Disposition of this case on this basis makes unnecessary the consideration in this dissent of other issues addressed by the principal opinion.
Because the grant of the Certificate of Incorporation was void ab initio the State Banking Board could not cure this void act on appeal by a simple reaffirmance, see *494§ 361.094, RSMo. 1978, nor could the circuit court.
The charter grant was a nullity and the circuit court’s affirmance of the Board’s order should be reversed. I would direct that the cause be remanded with directions to the circuit court that the cause be remanded to the Director of Finance for proper consideration of the original application for charter or for such further action as is requested on the still pending application for charter.