
    Richard J. GANUCHEAU v. Joseph E. ROUILLIER.
    No. 6062.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1973.
    Rehearing Denied Oct. 11, 1973.
    Writ Refused Oct. 15, 1973.
    
      Edward J. Boyle, Jr., New Orleans, for plaintiff-appellant.
    Thomas Barr, III and C. Cyril Brous-sard, New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON, GULOT-TA, STOULIG, BOUTALL, SCHOTT, BAILES, FLEMING and BOWES, JJ.
   PER CURIAM.

Plaintiff has appealed from a judgment dismissing his qtio warranto proceeding brought under the provisions of LSA-C.C. P. Art. 3901.

Upon the death of Thomas S. Buckley, Sr., on August 7, 1973, a vacancy existed in the office of Clerk of the Civil District Court for the Parish of Orleans. The unexpired term of office extends until May, 1974.

On August 8, 1973, the Judges of the Civil District Court, meeting en banc, selected and appointed defendant, Joseph E. Rouillier as Clerk of Court, “to serve until such vacancy is filled by election or appointment as provided by law,” whereupon defendant took the oath and properly assumed office. On September 13, 1973, the Governor of Louisiana issued to plaintiff a commission as Clerk of the Civil District Court, whereupon plaintiff took the oath and attempted to take the office. Upon defendant’s refusal to surrender the office this suit was filed.

This action brings into focus the following three sections of LSA-Const. or portion thereof:

“Art. V, § 12:
“The Governor shall have the power to fill vacancies that may occur during the recess of the Senate, in cases not otherwise provided for in this Constitution, by granting commissions which shall expire at the end of the next session; but no person who has been nominated for office and rejected shall be appointed to the same office during the recess of the Senate. The failure of the Governor to send to the Senate the name of any person appointed to office, as herein provided, shall be equivalent to a rejection.”
“Art. VII, § 69, subd. A(l) :
“Vacancies in the office of judge of a district, juvenile, family parish or city court, district attorney, sheriff, assessor, clerk of a district court and registrar of conveyances, recorder of mortgages and state tax collector in Orleans Parish shall be filled by appointment by the Governor, with the advice and consent of the senate.”
“Art. VII, § 93:
“Vacancies in the office of civil sheriff, clerk of the Civil District Court, recorder of mortgages and register of conveyances shall be filled temporarily by the judges of the Civil District Court of the Parish of Orleans, sitting en banc; vacancies in the office of the criminal sheriff, clerk of the Criminal District Court, clerk and constable of the city courts, shall be filled temporarily by the judges of the courts to which they are attached and all of said appointees shall serve until such vacancies are filled by election or appointment, as provided by law.”

This case is in the exact same legal posture as that which confronted the Supreme Court in State ex rel. Palfrey v. Judges of Criminal District Court of Parish of Orleans, 199 La. 232, 5 So.2d 756, where it was held that the appointment by the Judges of the Criminal District Court to fill a vacancy in the office of Criminal Sheriff for the Parish of Orleans was valid pursuant to Art. V, § 12 and Art. VII, § 93 and that the provisions of Art. VII, § 69, subd. A(l) were not applicable since the Senate was not in session and the Governor’s authority to fill such a vacancy by appointment does not extend to a recess appointment.

This Court is bound by that decision of the Supreme Court, and accordingly the judgment appealed from is affirmed.

Affirmed.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

I concur with the majority that we are bound by the Supreme Court decision in the Palfrey case, although that opinion simply denied an application for a writ of certiorari, which is the weakest kind of precedential authority.

The present case is basically a political action and involves the interpretation of constitutional sections which designate who exercises the political power of appointing a person to fill a vacancy in an elected office. The key issue is whether the Governor’s appointment, authorized by Art. 7, § 69, subd. A(l) but made while the Senate was in recess, constitutes an “appointment, as provided by law” under Art. 7, § 93 which would effectively supercede the judges’ temporary appointment.

Defendant apparently concedes that the Governor’s appointment would be valid if confirmed by the Senate, but that the recess appointment provisions of Art. 5, § 12 are not applicable because this is a situation “otherwise provided for in the Constitution.” I view this reasoning as a very broad interpretation of the “temporary” appointive powers conferred on judges by Section 93 and a very narrow interpretation of the broad appointive powers conferred on the Governor by Section 69, subd. A(l).

This case and the Palfrey decision reach the strange result that non-political officeholders get the political advantage of appointive power rather than the Governor, a political officer. Nowhere else in the Constitution do judges have the power of political appointment. Inasmuch as an appointment to a vacated elective office normally results in the appointee becoming the en-cumbent in the subsequent election and is in a practical sense tantamount to an endorsement of the appointee in that election, the majority interprets Section 93 as intending to allow judges to confer a very strong political advantage on their appointee.

In my opinion Section 93 should be interpreted as an expedient method of keeping the Clerk’s office running on a temporary basis when a vacancy occurs and not as a method for ultimately filling the vacancy by appointment. My interpretation is consistent with the plain meaning of the word “temporary” used in Section 93. Furthermore, my interpretation does not result in two temporary appointments, as stated in the Palfrey case. The judges’ appointment is temporary, lasting until the vacancy is filled by the Governor’s appointment (which can be done immediately) or by election if the Governor fails to appoint anyone; the Governor’s appointment is permanent, lasting (if the appointment is confirmed) until the vacancy is filled by election.

Considering together the provision of Art. 7, § 69, subd. A(l) and 93, and of Art. 5, § 11 and 12, I conclude that Section 93 authorizes the judges to name a person to temporarily run the office of Clerk, but only until the Governor’s power of political appointment is exercised under the less immediate and more permanent authority of Art. 7, § 69, subd. A(1) and Art. S, § 12, which power can be exercised during legislative recess. 
      
      . Under this interpretation the Governor’s power to appoint a Clerk of Court is limited to three months out of 24, unless he calls a special session of the legislature.
     