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this amendment would strike, in conflict
with section 5.04 as it now stands? It
seems an attempt is being made to provide
an escape valve. However, section 5.04 says
that the governor shall fill the vacancy in
the office of chief judge, and no such es-
cape valve is provided there.
I wonder why you feel it is necessary to
make a provision in 5.14 which is not
found in 5.04, dealing with the same sub-
ject matter?
DELEGATE M. SMITH: Because the
courts can well proceed to operate in the
absence of a chief judge on the accepted
principle that in his absence the associate
senior judge in the circuit shall proceed to
act. As a matter of fact, that is written
into this very provision.
THE CHAIRMAN : Delegate White.
DELEGATE WHITE: Mr. Chairman, I
wish to speak in support of this amendment.
This gives us a golden opportunity to do
one thing which we set out to do; that is
to shorten this constitution. We may strike
about 39 words by deleting this superfluous
language, and I urge you to vote in favor
of the amendment.
THE CHAIRMAN: The Chair recog-
nizes Delegate Henderson to speak in
opposition.
DELEGATE HENDERSON: I have been
a little disturbed by the statement which I
believe was attributed to Delegate Grant
with reference to some early case, the sug-
gestion that a writ of mandamus would
serve to compel the governor to make a
choice between three different candidates
that are proposed to him.
Now, ju^t how a court could require the
governor to make that choice, or what or
how they could enforce such a thing is
beyond me.
The general rule in mandamus — I am
not familiar with this case that they speak
of — but the general rule is that man-
damus will only lie to require the per-
formance of a ministerial duty. Here the
mandamus would require a choice between
three possibly equal alternatives, which
calls for judgment, and I do not see how
the court could compel the governor to ex-
ercise that judgment. I think if the basis
of this is that it is unnecessary to provide
an alternative, that that rests on a very
weak base.
THE CHAIRMAN: Is there any further
discussion?
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Delegate Hardwicke.
DELEGATE HARDWICKE: I wonder
if Delegate Henderson would yield for a
question.
THE CHAIRMAN: Delegate Henderson,
do you yield for a question?
DELEGATE HENDERSON: Certainly.
THE CHAIRMAN: Delegate Hardwicke.
DELEGATE HARDWICKE: I think
Delegate Henderson, there is an important
point to be clarified at this juncture.
The other day we passed a provision
which would permit someone to mandamus
the legislature to enact legislation of a
given type, which was discretionary in na-
ture and not ministerial, and I think that
the Convention went ahead with that par-
ticular item.
Is that what we are doing here? Is that
similar to the proposition before us with
regard to the governor?
THE CHAIRMAN: Delegate Henderson.
DELEGATE HENDERSON: I do not
recall at the moment just what that provi-
sion was, but I should doubt whether any-
thing which calls for the action or the ex-
ercise of judgment could be compelled, be-
cause I do not see which of the three al-
ternatives the governor could be compelled
to do. That is why I think the choice has
to be put in other hands.
I might say that in the case of reappor-
tionment, even if the court had tried to
compel the legislature to reapportion, it
was only when the Supreme Court said
that that duty could be performed in the
alternative by the court itself that they
really had an effective remedy.
THE CHAIRMAN: Delegate Hardwicke,
the Chair's recollection of the matter that
you just mentioned is somewhat at variance
with the statement you just made. I think
the question arose on one of the recommen-
dations of the Committee on General Pro-
visions. The statement was indeed made —
and I think by the Chairman of the Com-
mittee — that the legislature could be
mandamused to require it to pass legisla-
tion. That statement was controverted by
other delegates. I do not know that there
was anything to indicate the Convention
took a position on it one way or the other.
Delegate Hardwicke.
DELEGATE HARDWICKE: Mr. Chair-
man, my fellow delegates just reminded me
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