Brown

In these consolidated cases we examine the gubernatorial powers of the Lieutenant Governor during the Governor’s absence from the state and the powers of the Governor to rescind or revoke pri- or acts of the Lieutenant Governor. The dispute involves the Lieutenant Governor’s appointment of a presiding justice of the Court of Appeal while the Governor was out of the state and the Governor’s withdrawal of that appointment and substitution of his own appointee after his return to the state, As hereafter developed, we conclude that the Lieutenant Governor has authority to exercise all gubernatorial powers of appointment while the Governor is physically absent from the state and that the Governor has authority to withdraw the appointment until the confirmation of appointment becomes effective.

Article V, section 10 of the Constitution provides in pertinent part: “... The Lieutenant Governor shall act as Governor during the impeachment, absence from the State, or other temporary disability of the Governor or of a Governor-elect who fails to take office.” The section also declares that this court shall have “exclusive jurisdiction to determine all questions arising under this…

I agree that the withdrawal of the Arabian appointment was valid and that the writ should issue. I do not agree that “a physically absent Governor cannot act” (ante, p. 119).

That phrases in a constitution were deemed apt for a horse-and-wagon era does not ordain that we eschew sensible, up-to-date analysis of their meaning 130 years later. Justice Holmes once cautioned: “[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters... .The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.... We must consider what this country has become. ...” (Missouri v. Holland (1920) 252 U.S. 416, 433-434 [ 64 L.Ed. 641, 647-648 , 40 S.Ct. 382 , 11 A.L.R. 984 ].)

His wise admonition applies here, as does this comment by Chief Justice Hughes in Home Bldg. & Loan Ass’n. v. Blaisdell (1934) 290 U.S. 398, 442 [ 78 L.Ed. 413, 431-432 , 54 S.Ct. 231 , 88 A.L.R. 1481 ] (see also Miller, The Elusive Search for Values…