Edwardsville spectator. [volume] (Edwardsville, Ill.) 1819-1826, 1826-01-21

"poid iNHbiN "a hANioiOb VI Nv
relative rights subsisling between The
people and the executive.
Before this court then will assume
jurisdiction OF such great extern, and
reaching to cases oil such magnitude, il
will look seriously to the source from
whence ii derives its powers, and be sat-
isfied beyond a doubt, that il not only
possesses that power, but thai il is re-
CURED, in the present case, for the pur-
poses OF Justice, and due administra-
ton of the law, to exercise it.
The occasion must not be one oil an
equivoCal character, and the RICH, oil he
party claiming the interference oil his
court, TO restore him TO, or yield TO him
such right, through the exercise oil Its
powers, must be clear and certain, sbso-
luie and positive, perfect and complete,
aud he must have no other remedy by
which he can obtain it. Such are the
uniform decisions waieh have invariably
governed courts OF justice in granting
writs of mandamus.
The abinty with which the case has
been argued before the court, the novel;
ty OF the questions presented, and the
importance attached to them, copnecled
with many difficulties in the points made,
require an exposition oil the prime pies
which govern my decision in this case.
The following questions are then % be-
considered:
lst Whether the applicant has legal
right to the office OF paymaster geeeral,
and il so, can he require the commission
% be countersigned and sealed BY the
secretary of STATE
I'd. Ii be hes perfect legal right,
and that right has been violated, do our
laws afford him remedy by nandamus,
and is this court bound to award y?
shall consider the questions IN the
order they are stated.
list. Has the applicant a legal righ 10
the office OF paymaster general, and il
SO, is the secretary bound TO seal aud
countersign the commission?
This question involves in its consider
alton, independent OF the latter member
OF ii, two points OF importance, to wit:
LIST. Was he appointed to the office by
power acting at the time, within the le-
gitimate scope Of its authority
Cd. Has such appointment been made
| by power competent TO exercise The
right Of appointment, at the time OF max
ing IL
the authority under y hioh he olunus
bis right, is derived from an act, emitted
& an act amending an act entitled an act
organizing the militia of this state, APP
proved February 9Th, 1921" Tue A(h
section of TINS act declares " thai here
shall be an adjuant general, quarter
n as,er general, and a paymaster general,
to be appointed by the Commander in
chief" 1t appears from the affidavit, as
will be seen in tbs case, as stated, that
A dolphus F. Hubbard, on The Cd daq Of
November, 1925, claiming to have been
IN the due and legal exercise OF the Of
fee of governor, did appoint The said
Ewing to The said Office, aud make gu,
commission and require he secretary to
couD,ersgn and seal il which he refused
so do. This leads TO The inquiry pro-
pounded by the first question, viz was
be appointed TO the Office, by a pousr
acting at the time within the Legitimate
scope of its authority
The 22d section OF the Sd article Of
the constitution, declarg. that ",he eo-
vernon shall nominate, and by and wrh
the advice ard consent of the senate, APP
point all officers whose offices are es,a-
blishcd by this constitution, OF shat be
established by iaw, aud whose appoint
men S, are not herein otherwise provided
for
Has this appointment been made,
agreeably to this provision Of The consti.
tuition! 1T it has not, the Office being one
established by law, unless il can be shewn
to have been made under some o,her pro-
vision oil the constitution jus,iyins it,
was altogether Unauthorized, and conse-
quently, the applicant would have no te-
gal right to the commission. 1t is how
ever urged that the appointment is fully
justified, under the 18th section o! the
Sd article of the constitution, which is as
follows When any officer the right of
whose appointment is, by this cons,itn-
ton, vested in the General Assembly, or
in the Governor and Senate, shall during
the recess, die, or his Office, by any
means become vacant, the Governor
shall have power to fill such vacancy, by
granting a commission, which shall ex-
pire, al the end OF The next session OF tho
General Assembly"
Under this section, it is commended the
appointment vas made, and was authorize
J