Dissenting Opinion by
Mr. Justice Roberts:I am compelled to disagree with the anomalous result dictated by today’s affirmance of the order of the Commonwealth Court.1 Its result is totally inconsistent with the express language of Article IV, Section 8 of the Pennsylvania Constitution and effectively renders inoperative a mandatory constitutional provision.2 This *188construction of Article IV, Section 8, grants the Governor the power to whimsically and continually circumvent the constitutional requirement of Senate advice and consent to the contested and other executive appointments. The Governor may, according to the majority’s interpretation of Article IV, Section 8, make a “temporary recess appointment” which will continue until the closing of the next session of the Legislature. Thus, if so inclined, the Governor need never submit a permanent appointment. Recent history clearly demonstrates that governors affiliated with both political parties have disregarded this constitutional mandate.
Several of the challenged appointments were made on December 29, 1971—the day after the 155th regular session of the General Assembly adjourned sine die. Since then the next regular session of the Legislature— the 156th—also finally adjourned by virtue of the com*189mand of Article II, Section 2 of the Constitution. The current regular session—the 157th— is soon to adjourn and, in any event, is constitutionally mandated to terminate at noon on January 1,1974. Today as both the 156th legislative session and the year 1978 draw to a close, many of the unconfirmed December 1971 appointees as well as scores of others appointed shortly thereafter nevertheless continue in office without Senate confirmation.
Because of their analytical soundness, Judge Mencer’s dissenting opinions in the Commonwealth Court’s consideration of these cases warrant reiteration.3 Addressing the anomoly of effectively permanent “temporary recess appointments,” Judge Mencer explained: “Assuming that the appointment in question was validly made by the Governor, I can read the language of the Constitution only to provide that the appointment expired at the end of the Senate session in which the appointment was made.
“I comprehend the session of the Senate to be a full one-year period which may be divided into two parts by the Senate’s adjournment. That period of the session prior to adjournment is designated in Article IV, Section 8, as The session of the Senate . . . before its final adjournment . . .’ and that period of the session after adjournment is designated as ‘during the recess of the Senate.’ A new session commences at noon of the first Tuesday of January of each year and the former session ends at that moment.
“The majority states that ‘[i]t may very well be that such was the intention of the people when they adopted *190the new Constitution, so as to avoid what the plaintiffs assert is the circumvention of the constitutional restraint on gubernatorial appointments.’ I submit it was not only the intention of the people, but it is what they accomplished in bold, clear and unequivocal language. How can a recess appointment made during the 155th session ‘expiring at the end of its session’ (emphasis supplied) mean anything other than that it will end when the Senate’s 155th session ends, which time was at noon on January 4, 1972? When the words of a constitutional provision are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Stroup v. Schonek, 5 Pa. Commonwealth Ct. 257, 259-61 (1972) (Mencer, J., dissenting).
This analysis, through which a reasonable effect is attributed to Article IV, Section 8, must certainly embody the intent of the electorate. Any other result denies effect to Section 8. It assumes that the Constitutional Convention and the people of this Commonwealth approved and ratified a meaningless provision. This conclusion is even more blatantly apparent in the majority’s interpretation of “shall” as “may”. Like Judge Mencer,
“I read Article IV, Section 8, to place on the Governor the mandatory duty to submit names to the Senate if the vacancy happens during the session of the Senate. The words, ‘he shall nominate to the Senate,’ are to me plain and unequivocal. ‘Shall’ is not a word of discretion. To conclude that ‘shall’ is a discretionary word in this context would require the mental addition of the words, ‘unless the Governor decides otherwise.’
“Article IV, Section 8, provides that the Governor may fill vacancies during the recess of the Senate and, in the next sentence, that the Governor shall submit names to the Senate for vacancies happening during the session. I believe it is a fair and sound inference that *191the people in adopting the Constitution realized the difference between mandatory ‘shall’ and discretionary ‘may’ and intended for them to have their ordinary meanings.” Stroup v. McNair, 5 Pa. Commonwealth Ct. 244, 253-54 (1972) (Mencer, J., dissenting).
The cases upon which Mr. Justice Manderino and the concurring opinions rely do not counsel affirmance. Both Commonwealth ex rel. Lafean, v. Snyder, 261 Pa. 57, 104 Atl. 494 (1918) and Ritenour v. Peirce, 442 Pa. 1, 272 A. 2d 900 (1971), involved gubernatorial appointments following Senate failure to confirm a properly submitted proposed permanent appointment. Here no permanent appointments were ever proposed.4 These cases indicate only that when the Senate rejects or fails to act on an appointment, the Governor may make a temporary selection.
Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 281 A. 2d 57 (1971), was a case affirmed by an equally divided Court. Three Justices concluded that gubernatorial appointments made to positions vacated during a Senate session without submission of the nominees to the Senate were invalid.5 Furthermore, as the majority recognizes, Creamer involved Article V, Section 13(b) of our Constitution, a section “materially different” from the provision now before us.
Here, the Governor failed to comply with his constitutional duty to submit nominations to the Senate for approval. In only one of the present cases did the vacancy occur while the Senate was not in session. Even assuming the initial appointments valid, the majority’s nullification of Article IV, Section 8 is a gross misconstruction of a clear constitutional mandate. To *192permit the chief executive, by fiat, to abrogate the constitutional system for executive appointments undermines in yet another respect our system of separation of powers.
Pragmatically, this decision sanctions the practice of the executive’s making appointments without Senate confirmation. As a consequence of this decree the contested appointees as well as hundreds of others, never confirmed, continue in office. It is predictable that they will continue in their offices until the 157th regular session of the Legislature ends either by sine die adjournment or by failure to adjourn before the new 158th regular session convenes at noon on the first Tuesday of 1974.6
The aggrandizement of power in the executive was a persistent fear of our forbearers. For that reason, our Constitution carefully divided the sovereign power of the Commonwealth among the three branches of government. The prophetic wisdom of this division is, particularly today, self-evident.
I am unable to accept an interpretation or a result so wholly lacking in constitutional accountability. I would reverse the order of the Commonwealth Court and instruct that court to dismiss defendants’ preliminary objections, and proceed to hear and determine this important constitutional question on the merits.
I dissent.
Mr. Justice O’Brien joins in this dissenting opinion.It is clear to me that appellant members of the Pennsylvania Senate have standing to maintain this quo warranto action. In my view, it makes no sense at all to announce that the Senators have standing to challenge the constitutionality of gubernatorial appointments and at the same time to hold, as the majority does, that such appointments are valid without Senate confirmation.
Article IV, Section 8, provides:
“(a) The Governor shall appoint an Attorney General, a Superintendent of Public Instruction and such other officers as he *188shall be authorized by law to appoint. The appointment of the Attorney General, the Superintendent of Public Instruction and of such other officers as may be specified by law, shall be subject to the consent of two-thirds of the members elected to the Senate.
“(b) Except as may now or hereafter be otherwise provided in this Constitution as to appellate and other Judges, he may, during the recess of the Senate, fill vacancies happening in offices to which he appoints by granting commissions expiring at the end of its session and fill vacancies happening in the office of Auditor General or State Treasurer or in any other elective office he is authorized to fill. If the vacancy happens during the session of the Senate except as otherwise provided in this Constitution, he shall nominate to the Senate, before its final adjournment, a proper person to fill the vacancy. In the case of a vacancy in an elective office, a person shall be elected to the office on the next election day appropriate to the office unless the vacancy happens within two calendar months immediately preceding the election day in which case the election shall be held on the second succeeding election day appropriate to the office.
“(e) In acting on executive nominations, the Senate shall sit with open doors. The votes shall be taken by yeas and nays and shall be entered on the journal.”
Stroup v. McNair, 5 Pa. Commonwealth Ct. 244, 250 (1972) ; Stroup v. Schonek, 5 Pa. Commonwealth Ct. 257, 259 (1972) ; Stroup v. Kapleau, 5 Pa. Commonwealth Ct. 362, 364 (1972).
See Stroup v. McNair, 5 Pa. Commonwealth Ct. 244, 251-53 (1972) (Mencer, J., dissenting).
See Creamer v. Twelve Common Pleas Judges, 443 Pa. 484, 503-04, 281 A. 2d 57, 66 (1971) (Opinion by Mr. Chief Justice Bell Supporting in Part and Opposing in Part the Results Announced in the Per Curiam Order) (joined by O’Brien and Roberts, JJ.)
See Pa. Const. Art. II, §4.