State Ex Rel. Fox v. Brewster , 140 W. Va. 235 ( 1954 )

Lovins, Judge,

concurring:

I concur in the result reached in this case, but I do not agree that the citation of the cases of State Ex Rel. A. Garnett Thompson, Member West Virginia Turnpike Commission v. D. Holmes Morton, and State Ex Rel. James M. Donohoe, Member West Virginia Turnpike Commission v. Hugh F. Hutchinson are applicable to the issues presented in the instant case. Nor do I agree with any of the reasoning in this opinion based on such citation.

The questions presented in the cases above mentioned are different from those presented in the case at bar.

The mandamus proceeding of State Ex Rel. A. Garnett Thompson, Member West Virginia Turnpike Commission v. D. Holmes Morton and State Ex Rel. James M. Donohoe, Member West Virginia Turnpike Commission v. Hugh F. Hutchinson raises the controlling issue whether the Governor has the authority and power to remove members of the Turnpike Commission heretofore legally appointed by the Governor of this State and thereafter confirmed by the Senate.

In the instant case, the question is: Is an appointment made by an outgoing Governor binding on his successor in the absence of formal nomination communicated to the Senate by the Governor.

I think the issue and the subsidiary issues here presented are resolved correctly in this proceeding in the nature of a writ of quo warranto.

The references made in the Court’s opinion herein to the mandamus proceedings above mentioned concerning membership in the Turnpike Commission are not pertinent nor relevant to the issues presented in this proceeding in the nature of a writ of quo warranto.

This concurring note is filed in the interest of consistency and with deference to the views of the Court, as set forth in the opinion in the case at bar.