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question that Delegate Mitchell asked that
I would like to follow up. I was told the
other day that the judiciary could not com-
pel the legislature to carry out a mandate
of the constitution. Nor could the judiciary
enact laws in the absence of any action on
the part of the legislature.
Now the question is: does that principle
of law and constitutionality still hold in
this case, that is, if the governor refuses
or fails to act on the mandate of the con-
stitution that a judge shall be appointed
within a certain number of days? I was
told the only recourse is the ballot. Is that
true in this case?
DELEGATE MUDD: No, because we
have provided here as pointed out by Dele-
gate Mitchell, Delegate Pullen, that if the
governor fails to appoint within the 60
days, the chief judge of the Court of Ap-
peals shall have the power of appointment,
THE CHAIRMAN: Delegate Pullen.
DELEGATE PULLEN: Is not that an
invasion of the powers of the executive?
DELEGATE MUDD: I can only cite you
the reasoning advanced by Delegate Hen-
derson in whose judgment I have implicit
confidence and he says no.
THE CHAIRMAN: Delegate Pullen.
DELEGATE PULLEN: Judge Hender-
son, the same principle would apply? If
the legislature failed to act on a mandate
of the constitution, could the judiciary take
action?
THE CHAIRMAN: Delegate Henderson,
can you reply to the question put by Dele-
gate Pullen?
DELEGATE HENDERSON: I think the
only instance I recall in which such a situ-
ation developed was over reapportionment.
That, of course, is a very exceptional case.
This business of saying that where an
office must be filled, it can be filled in the
alternative by someone else is, I think, not
a departure from general principle. I think
that is not an unusual provision to provide
against the possibility of having a stale-
mate and impasse so that a vital office re-
mains unfilled. That situation occurred in
at least one state where such an impasse
developed and is the reason we sought to
cover it here.
THE CHAIRMAN: Delegate Pullen.
DELEGATE PULLEN: I do not think
we ought to argue this case, but I cannot
see the difference in logic.
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THE CHAIRMAN: You have oppor-
tunity to debate it later, Delegate Pullen.
DELEGATE PULLEN: May I put it in
the form of a question?
THE CHAIRMAN: State your question.
DELEGATE PULLEN: What is the dif-
ference in the courts acting in one case
and not in another, one in which the gov-
ernor is concerned and one in which the
legislature is concerned.
THE CHAIRMAN: Proceed, Delegate.
DELEGATE MUDD: I think it is clear,
Delegate Pullen, that in one instance you
are speaking of the court's enacting the
law and in the other you are speaking of
the court exercising the appointive func-
tion. I think there is quite a difference.
THE CHAIRMAN: Delegate Chabot.
DELEGATE CHABOT: Section 5.24
forbids a judge running for elective office
other than the judicial office he then holds.
Would that forbid a judge from running for
constitutional convention delegate, too?
DELEGATE MUDD: You raise most
interesting questions, sir. Are we going to
have another one within our lifetime? I
will not answer it if we are.
THE CHAIRMAN: Delegate Chabot.
DELEGATE CHABOT: I believe that
there is a likelihood that this constitution
will contain a provision for the people to
determine every twenty years or so whether
or not there shall be a Convention.
DELEGATE MUDD: Did the Attorney
General not define our position before we
ran for election with respect to legislators
or judges? I do not know what his deter-
mination was, whether this was a political
office we hold or not.
THE CHAIRMAN: The term was some-
what different. The term there was "office
of profit or trust." The term here is "elec-
tive office."
DELEGATE MUDD: Do you agree that
the position of delegate is not a position of
profit?
(Laughter.)
THE CHAIRMAN: Delegate Chabot.
DELEGATE CHABOT: I am concerned
with the fact that you used a different
term. You used "office of profit" several
places in this group of sections and in fact
I believe you used it later on in this very
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