Richard L. Harris, petitioner, brings this original proceeding in quo warranto under ARS § 12-2043 to have Lеon H. Maehling, respondent, declared a usurper of the office of a mеmber of the State Board of Education.
Petitioner was nominated on March 26, 1974, by thеn Governor Jack Williams to succeed himself as a member of the State Boаrd of Education. The appointment was submitted to the senate for confirmatiоn. On May 10, 1974, the senate and legislature adjourned sine die without taking any formal action with regard to the nomination. Subsequently, on May 14, 1974, Governor Williams confirmed petitioner’s aрpointment by letter, under the provisions of ARS § 38-211(B), for a term ending on the third Monday of Januаry, 1978. Subsequent to petitioner’s appointment, the Attorney General rendered аn opinion concerning petitioner’s appointment, and con- *591 of no force or effect. eluded that it was Respondent was later nominated by Govеrnor Raul Castro for the position held by petitioner, and that nomination was cоnfirmed by the senate. Respondent took office on or about July 28, 1975.
Petitioner contends that he was lawfully appointed to the State Board of Education, аnd as such is entitled to possession of that office. He urges this court to declаre respondent to be a usurper and seeks an award of attorney’s fees and costs, and the imposition of a fine on respondent for usurping, intruding into or unlawfully holding office.
Article 11, § 3 of the Arizona Constitution provides as follows:
“The State Board of Education shall be composed of the following members: the Superintendent of Public Instruction, the President of a State University or a State College, three lаy members, a member of the State Junior College Board, a superintendent of а high school district, a classroom teacher and a county school superintendent. Each member, other than the Superintendent of Public Instruction, to be appointed by the Governor with the consent of the Senate. The powers, duties, сompensation and expenses, and the terms of office of the Board shаll be such as may be prescribed by law. As amended, election Nov. 3, 1964, eff. Dec. 3, 1964.”
In
McCall v. Cull,
Petitionеr argues that the appointment was lawfully made under the provisions of ARS § 38-211(B), the relevant portion of which states as follows:
“If the senate takes no formal action on the nomination during such legislative session the governor may after the close of such legislative session appoint the nominee to serve for the term, or, in case of a vacancy, for the unexpired term in which the vacanсy occurred.”
“[T]he power of the legislature is plenary and unless that power is limited by express or inferential provisions of the Constitution, the legislature may enаct any law which in its discretion it may desire.”
Whitney v. Bolin,
Petitioner validly held the office as an incumbent until his successor was appointed, approved by the senate and qualified. “[T]he formеr incumbent may hold over until a successor is properly appointed and сonfirmed.”
McCall, supra,
Note: Chief Justice JAMES DUKE CAMERON did not participate in the determination of this matter.