dissenting:
I respectfully dissent.
This controversy arises solely because of the unwillingness of a public servant to relinquish a statutory office over which the Governor is conferred the power of appointment, notwithstanding the expiration of his appointed term and the Governor’s appointment of a successor for the office. The question presented results from the Governor’s exercise of his power while the Senate is in recess to make a so-called recess appointment. The appointment made granted a commission to Relator which was required to “expire at the end of the next session of the Senate.”
It is self-evident that at the time of the Governor’s issuance of his commission to Relator, his predecessor’s term of appointment to that office had expired by some 30 months. It is also the fact that the Governor had resorted to exercise of his recess appointment power only after first submitting the Relator’s name to the Senate for confirmation, pursuant to Article III, § 9. It is also the fact that the Senate did not reject the Governor’s nomination; nor did the Senate take any action on the nomination over a period of nearly two years that the Senate was in session.
Thus, this is not a case of premature use or abuse by the Governor of the “special grant” of power conferred on him by Article III, § 9 to fill for a limited time vacancies in public offices occurring during the recess of the Senate.1 Hence, it cannot be contended that the Governor, by resorting to his power to fill the 30-month vacancy in the office in question by issuing the recess commission on January 6, 1981 to Relator, has deprived the Senate of the right to perform its delegated role in the “general appointive process. This is also not a case of a Governor delaying the exercise of his general grant of power to fill a vacancy in a public office that has occurred while the Senate was in session and until the Senate is “in recess.” Nor is it the case of a Governor resorting to the use of his special power of appointment to issue a commission to a nominee who has previously been rejected by the Senate for nomination to the very same office.
I say this to dispose of non-issues as to fears of how the Governor’s special recess power under Article III, § 9 might conceivably be abused by a Governor who sought to deprive the Senate of its designated role in the Governor’s exercise of his general power of appointment. I also say this because I believe that the majority’s concern for this potential for abuse of the recess power has led the Court to a result which does violence to the doctrine of separation of powers by weakening the Governor’s ability to perform his executive function.
Where, then, lies the asserted right of Defendant Killen to hold over in this case where Defendant’s successor has been appointed by grant of a commission issued by the Governor under the authority of Article III, § 9 while the Senate was concededly in recess?
The majority finds this “right” in two ways: first, by construing Article XV, § 5 as conferring a “de jure right” in an incumbent whose term has expired to hold over indefinitely, thereby giving such right preference over the Governor’s special recess power to appoint a successor; and second, by concluding that the Governor’s special power, as distinguished from his general power, under Article III, § 9, is not, in reality, a power to appoint at all, but merely a power to fill a vacancy. Hence, if there is no vacancy, there is no power; and there is no vacancy in the office held by *754Killen because of his “de jure right” to hold over — presumably indefinitely, until such time as the Governor and the Senate can agree on who should fill the office.
The reasoning is circular and the result, in this case, borders on the bizarre. Here, we have a public servant appointed for a term of four years who has the temerity or arrogance to choose to stay on indefinitely. The majority does not deal with the fact that incumbent’s term of office has long since expired and that the power of the Governor to exercise his executive power of appointment is obviously being frustrated. Instead, the majority focuses, improperly I submit, on the legal standing of the holdover incumbent to resist removal rather than upon the right of the Governor to appoint a successor of his choosing.
With respect to Article III, § 9, several observations can be made. One, it is quite understandable that the “special” power conferred upon the Governor thereunder is expressed in terms of a power to fill “vacancies” rather than in terms of simply a power to appoint, as is the Governor’s “general” power. The special power may only be exercised when the Senate is in recess. And the operative event necessary to invoke the special power is the existence of a vacancy during the recess of the Senate. The power — whether general or special — is no less a power to appoint; and a vacancy is a necessary prerequisite to the exercise of either power.
Two, the last sentence of Article III, § 9 could, and should, be read as stating, “He shall have the power to grant Commissions to fill all vacancies that may happen during the recess of the Senate ... which shall expire at the end of the next session of the Senate.” So read, the Governor’s recess power is no less of a power to appoint than is his power to appoint while the Senate is in session. The only meaningful distinction between the two powers is the temporary nature of his recess power and the limited use that may be properly made of it.
Three, the Governor’s recess power is a power to fill “all vacancies” happening or continuing during the recess of the Senate. The Governor’s recess power is thus stated as absolutely as his power to appoint while the Senate is in session. The Governor’s recess appointment power is not circumscribed by the manner in which the office becomes and remains vacant. The recess power is not limited to the filling of only such vacancies as arise by death, resignation or removal from office. Such have been termed “absolute” vacancies, State ex rel Satterthwaite v. Stover, supra, which may be distinguished from the “constructive” vacancy arising in this case. The latter is a vacancy resulting from expiration of the term of office prescribed by statute. The Governor’s recess power necessarily, logically and expressly extends to “all vacancies.” Yet the majority’s holding illogically limits the recess power to “absolute” vacancies. Its holding thus permits a holdover incumbent to defeat the Governor’s exercise of his special power (after the Senate declines to act upon the Governor’s effort to exercise his general power) by simply refusing to vacate the office.
Turning to Article XV, § 5, it seems fair to say that simply because the section confers on an incumbent a de jure duty to hold over until his successor is duly qualified, that same duty cannot be converted into a de jure right to hold over in disregard of the fact that the incumbent’s successor has been concededly appointed and qualified.
Had the Senate acted on the Governor’s nomination and confirmed Relator, Defendant’s authority under Article XV, § 5 to hold over would clearly have ended upon the appointment and qualification of Relator. Under no reasonable construction of Article XV, § 5 could defendant be entitled of right to hold over. How, then, can this holdover power be construed to be an inalienable “right” for one purpose but no more than a duty for another?
The majority thereby confuses rights and powers in construing Article XV, § 5 as conferring upon a holdover incumbent whose term has expired a right to remain in office superior to the Governor’s power to appoint a successor.
*755The so-called “conflict” between Article XV, § 5 and Article III, § 9 is largely of the majority’s own making. For the majority first characterizes § 5 as conferring a “de jure right” upon a holdover to continue in office that thereby prevails over a gubernatorial recess appointment. But the majority must also concede that the very same constitutionally conferred power to hold over is nothing more than a power, rather than a right, in the context of the Governor’s appointment of a successor with the consent of the Senate.
Until now, this Court has construed Article XV, § 5 as simply conferring a power to hold over so as to permit an incumbent to serve a caretaker’s role for the period between the expiration of his term and the appointment of his successor. See, Walker v. Hughes, Del.Supr., 36 A.2d 47 (1944), stating:
The purpose of a holding over provision is to prevent a possible vacancy or interregnum in a public office where there is no properly qualified successor at the expiration of the usual statutory term, so that the public business will not be interrupted or subjected to doubt or dispute, (emphasis added).
Defendant’s right to remain in office must terminate upon the Governor’s proper exercise of his appointive powers under Article III, § 9. Since no contention is here made that the Governor improperly resorted to his recess power and thereby failed to comply with both the letter and spirit of Article III, § 9, Defendant’s holdover right to remain in office ceased on January 6, 1981. Article XV, § 5 cannot be reasonably construed as conferring any substantive right upon Defendant to continue in office in disregard of Relator’s conceded qualification to fill the vacancy in the given office on a temporary basis.
The majority’s studious effort to rationalize its result through Delaware case precedent does not stand up on careful analysis. No one or combination of the Delaware authorities relied on by the majority support the holding in this case. The most that the majority can glean from Delaware case precedent is that it “clearly dictates that there is no vacancy on the mere expiration of a term.” That conclusion is of no assistance in resolving the ultimate question presented: Whether defendant’s conceded de jure right to hold over following the expiration of his appointed term of office continued beyond, or instead was terminated by, the Governor’s lawful exercise of his recess power of appointment under Article HI, § 9.
Stover contains no language that can be reasonably construed as supporting the Court’s holding in this case. The distinction made in Stover between the Governor’s general session power and his limited special recess power does not support the result reached herein — for the reasons previously stated. Indeed, Judge Rodney, in Stover, precisely distinguished the case before him from this case by stating, “We are not concerned with the holding over, after the expiration of a term, where the appointee had originally been regularly appointed and confirmed.” (159 A. at 241). More to the point is Judge Rodney’s conclusion after discussing the various kinds of vacancies that may occur in an office (original, absolute and constructive):
It, therefore, becomes material in considering whether a vacancy existed in the office of ... [on the date of the Governor’s issuance of a recess commission to a successor to the office] to consider the manner of the holding of the then incumbent. ... (159 A. at 241) (underlining added).
Southerland v. Caulk, supra, holds only that where a purported successor was not duly elected, the incumbent officer was entitled to hold over by virtue of Article XV, § 5. Satterthewaite v. Highfield, supra, did not present a question remotely relevant to the one before this Court.
The 1963 Opinion of the Justices, supra, concerned the terms of constitutional judges for whom special provision is made under Article IV, § 3 for their replacement whenever “a vacancy shall occur, by expira*756tion of term or otherwise.” Such language indicates no more than a clear legislative intent that constitutional judges may not hold over under the authority of Article XV, § 5. This Court’s advisory Opinion did not address the question in this case— whether the expiration of a statutory term of office creates a “vacancy” subject to the Governor’s exercise of his recess appointment power.
So far as I know, there is no case law supporting the holding of this Court — that an officer’s right to hold over beyond the expiration of his term of office is superior to the Chief Executive’s right to appoint a successor by any constitutionally delegated manner.
Indeed, in the only two known instances that a Chief Executive’s special recess power has been challenged by an incumbent holdover, the courts have held the recess appointment power to be superior to the incumbent’s holdover rights. State v. Young, La.Supr., 137 La. 102, 68 So. 241 (1915); Staebler v. Carter, D.D.C., 464 F.Supp. 585 (1979).
In both Young and Staebler, the ratio decidendi of the majority in this case was rejected. Both Courts ruled that a power to hold over (in one case, conferred by constitution, in the other, by statute) must be subordinated to a Chief Executive’s recess appointive power to fill an office made vacant by the expiration of an incumbent’s term. In Young, as here, the contention was made, and rejected, by evidence of legislative intent that a vacancy in membership on the Commission was deemed to exist from the expiration of an incumbent’s term of office. But the Court also concluded that even if it were to adopt the incumbent’s view [as this Court has done in this case], the incumbent’s holdover “rights” should not prevail over the Executive’s recess appointment power under any theory or analytical approach to the question. In particular, the Court in Staebler found the incumbent’s argument to restrict unreasonably the Chief Executive’s constitutionally conferred recess appointment authority "... to operate only in the unusual situation when no person is available to occupy a particular office....”2 The Court continued:
If that interpretation is correct, the President would be prohibited from making a recess appointment when a term of office has expired, as long as someone with a permissive claim to the office is still serving.
The Court is not persuaded that this was the intention of the framers of the Constitution. There is nothing to suggest that the Recess Appointments Clause was designed as some sort of extraordinary and lesser method of appointment, to be used only in cases of extreme necessity. Some constitutional provisions, such as the First Amendment, have a preferred standing, but otherwise all parts of the Constitution are of equal validity and weight and should be construed in light of the principle that the entire Constitution must be regarded as one whole. Prout v. Starr, 188 U.S. 537, 543-4, 23 S.Ct. 398 [400-401], 47 L.Ed. 584 (1903). The framers did not indicate that the appointment process was to be an exception to this general rule of equality, and no court has so held.27 In the absence of persuasive evidence to the contrary, it is therefore not appropriate to assume that this Clause has a species of subordinate standing in the constitutional scheme or that it is not as operative when Congress is not in session as the Nomination and Confirmation Clause (Article II, Section 2, Clause 2) is when Congress is available.
* * * * * *
There is thus no evidence, semantic, historic, philosophic, or in prior practice or usage, to support plaintiff’s view that the recess appointment power was intended to be restricted to instances of absolute *757need, i.e., when no individual is available to occupy the office on any tenable basis. The more persuasive conclusion to be drawn from the available evidence is that recess appointments may validly be made during congressional recesses, and that the persons so appointed may then begin to serve, subject to the constitutional limitation that, unless confirmed, their service will terminate at the conclusion of the next session of Congress. It follows that a construction of 2 U.S.C. § 437c which would preclude the President from making a recess appointment in this situation — i.e., during a Senate recess and after the statutory term of the incumbent has expired — would seriously impair his constitutional authority and should be avoided if it is possible to do so.
VII
The same result follows from an analysis of broader constitutional considerations. This case, like Buckley v. Valeo, [424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659], supra, necessarily involves not merely the interests of the parties but also the proper distribution of power between the branches of government with respect to appointments to high office. Madison has noted that a partition of power “must be supplied by so contriving the interior structure of government as that its several constitutent parts may, by their mutual relations, be the means of keeping each other in their proper places.” The Federalist No. 51 (Wesleyan ed. 1961). The Constitution must be interpreted in light of that fundamental principle of checks and balances. Buckley v. Valeo, supra, 424 U.S. at 120, 96 S.Ct. 612; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863 [870], 96 L.Ed. 1153 (1952).
As a necessary incident to a decision in this case a choice must be made between a construction of the Act supporting the exercise of executive authority and one which would vest greater power in the legislative branch. Given the need for such a choice, the constitutional scheme of checks and balances in this particular instance favors the claims of the executive.*
* * * * *“ *
We must not forget that this power of appointment to office is essentially an executive function. It belongs essentially to the executive department rather than to the legislative or judicial.
* * * * * *
This does not mean, of course, either that Presidential power in this field is absolute — obviously it is not — or that every law dealing with appointments to office must necessarily be construed to favor the greatest possible role for the executive branch. But where, as here, there is an ambiguity,* and where, depending upon the resolution of that ambiguity the President or the Congress may achieve a stronger voice (see infra), it is appropriate to consider that the President was intended by the framers of the Constitution to possess the active, initiating, and preferred role with respect to the appointment of officers of the United States.
* * * * * *
... Under plaintiffs construction, on the other hand, it is conceivable that a member of the Commission, once appointed and confirmed, albeit for a limited term, could remain in office indefinitely notwithstanding the expiration of that term, as long as the Senate refuses to confirm any successor, or indeed, as long as a significant number of members of the Senate is able to prevent the nomination of a potential successor from coming to a vote. The President would be totally powerless by constitutional means to protect himself and the power to nominate officials conferred upon him by Art. II, Sec. 2 of the Constitution from such usurpation. Clearly, the interpretation prof*758fered by plaintiff is far more unbalancing of the harmonious interplay between the branches than that of defendants (cf. The Federalist No. 51, pp. 323-4; The Federalist No. 48, pp. 308-310) and should therefore be avoided if possible.
So also does this case involve, to borrow Judge Greene’s words, “not merely the interests of the parties but also the proper distribution of power between the branches of government with respect to appointments to high office,” (464 F.Supp. at 598). Indeed, in this case the interests of the Relator and Defendant are far overshadowed by those of the real parties in interest, the Executive and Legislative branches of government, in the proper functioning of the Governor’s constitutionally conferred recess appointment power. That power conferred by Article III, § 9 of our Constitution is, as the majority notes, apparently based on and taken from Article II, § 2 of the Federal Constitution.
Hence, the recess appointive powers conferred on the Governor are indistinguishable from those conferred on the President except to the extent of any diminishment in the Governor’s recess power resulting from our Constitution’s holdover clause, Article XV, § 5.
I submit: (1) that Staebler represents the proper approach to the question of whether Article XV, § 5 should be construed as diminishing the Executive’s recess appointment power; (2) that the ultimate issue is, as found in Staebler, “the proper distribution of power between the [Executive and Legislative] branches of government with respect to appointments to high office” (464 F.Supp. at 598); and (3) that the majority has become sidetracked by its preoccupation with the conceptual problem by-passed in Staebler of whether any legal vacancy in office exists by virtue of holdover “rights” of the Defendant incumbent.
By so approaching the immediate issue of Defendant’s “right” to hold over in the face of the Governor’s exercise of his recess power to appoint a successor (Relator), the majority has, as Staebler warns, seemingly forgotten that the “power of appointment to office is essentially an executive function [and] belongs essentially to the executive department rather than to the legislative or judicial.” (464 F.Supp. at 599). This Court has clearly reduced the Governor’s appointive power in an area essentially belonging to the Executive branch and has increased the Legislature’s role in the appointive process. The Court has thereby unnecessarily tampered with the Constitution’s framework.
. See, State ex rel Satterthwaite v. Stover, Del.Supr., 159 A. 239 (1932).
. I quote at length from Staebler because of Judge Greene’s incisive analysis of the “broader constitutional considerations” and implications underlying the question presented. (464 F.Supp. at 598).
Footnote omitted.
Story’s view of the Recess Appointments Clause, that it applies only in cases of death, resignation, promotion, or removal (J. Story, III Commentaries on the Constitution 411 (reprinted ed. New York 1977) (1st ed. Boston 1833) has not been followed in practice or by the courts. See the excellent discussion in United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir.1962), cert. denied, 371 U.S. 964, 83 S.Ct. 545, 9 L.Ed.2d 511 (1963).