Southport telegraph. [volume] (Southport, W.T. [i.e. Kenosha, Wis.]) 1840-1850, 1842-08-03
ANIMpORTANT DECISION.

OF the ACT OF OrganlZaton, anu HeHce W NC iiheu
only by appointment of the Executive, with the con-
currence of the Council.
The Legislature entertained different opinion,
and since the first organization Of the Territory, has
been in the habit of filling some of the offices OF It's
own creation, by election on joint ballot-and d.
ring the administration of Gov. Dodge this course
was pursued without any attempted interference on
the part of the Executive.
BY the law providing for the erection of the Ca
pitol, the office of building commissioner was crea
ted, and individuals elected on joint ballot, of
whom this ]. ID. Doty one, to fill this station.
The eruditoR of Mr.. ID. was not then sufficient
to enable him to discover that, in accordance with
the act of organization his election illegal, and
therefore void, and he proceeded to the discharge
of his duties. Indeed from his subsequent conduct,
he appeared think he was so firmly fixed in Of
flee by this election joint ballot, that legal
thority existed any where turn him out, ride, his
refusal to acknowledge the power of the Assembly
in the premises, when he and his colleagues were
removed, and successors elected.
The act of the Assembly concerning the Mwau-
kee and Rock River Canal, provided for the cleo
ton by joint ballot of three canal commissioners
These officers were thus elected annually. The
legality of their election was not questioned, and
they met with no hndrance in the discharge of their
duties.
AT the last session of the Legislature, however,
the first under the new administrations after the
Assembly, in accordance with its usual practice,
had elected these commissioners the members were
surprised with the intelligence from the Executive
Department, that their course in the matter was il
legal. and consequently void; that although they had
power to create offices, they had no authority to fill
them; tina the offices were civil ones within the
meaning ofhe act of organization, and could legally
be filled only by the Governor, with the advice and
consent of the Council His Excellency made no.
limitations to the Council accordingly which BODY
took notice of them, other than to Law them on
the table. After the adjournment of the Legisla-
ture. the Executive appointments were renewed,
and the consequence was, two boards of canal COM
m;ssloners, each claiming to be the legal board,
were in act.e existence. The commissioners elect
ed by the Assembly had this advantage, they were
in possession of the books and papers belonging to
the ofices-wth this disadvantage that the Gov
ernor had refused to approve their bonds.
The whole matter, by stipulation of the parties,
was submitted to the Supreme Court of the Terri
tory, upon application of Thomas j. Noyes, one
of the Executive commissioners, for mandamus
to compel the delivery to him of the books and pa
pers in the possession of A. w. HATCH one of the
commissioners elected by the Assembly.
A full investigation of the points in issue was
had, and the opinion of the Supreme Court, which
is somewhat voluminous well as able, was read
by Judge Miller, on the 22d ultimo The aandam-
as refuSed-it being the opinion of the Cour,
that the term I" crH ofccs," as used in the act OF
organization, could not be properly construed to
apply to the canal commissioners, for says Judge
Miller" Laying aside the position, that this Of
flee of canal commissioner was not contemplated bv
Congress, at the enactment of the organic law, it
may be inferred, that the term Girl officers, in
tended to embrace such officers, as in whom, part
of the sovereign municipal regulations, or ge
neral interests of society, vested and that such has
been the general understanding, in the States, un
der their constitutions, known to citizens of cxpe
rience and observation. But this question is not
without authority, of very respectable character
On page pa of Sergt. 81 Rawle, will be found
not in the Library, as follows: In 1929, the Su-
preme Judicial Court of the State of Maine, con-
sistng of Meen, Chief Justice, and Preble and
Weston, Justices, In opinion given to the Gov
ernor OF that State, say that the terms office and
officer, used in the constitution of Maine where
1t prescrlbes oath of office, to all legislative ex
ecutive, and judicial officers, imply delegation of
portion of the sovereign power to, and possession
oft by, the persons filling the office; and that
person clothed with resolve of the legislature
with no other power than those of superin,ending
the public lands, and performing certain acts rela-
ting to them, under the discretionary regulation of
the Governor, not officer, and therefore was
not required to take the OATH
Many cases in point, as decided by the people OF
Pennsylvania, their legislature and their legal ribu
nails, which substantiate the position assumed by
the Court as to the proper construction of the word
"ofce," are referred to and we think the doctrine
is very clearly made out-that the offices of Canal
commissioners as we'll as building commissioners
were not contemplated by and do not come within
the meaning of the act of organization, and there
fore that the Legislature had full authority to make
any provision with reference to the manner of their
selection, which it deemed expedent.
We are pleased that this question is thus disposed
of. A writer in the Milwaukee Courier, whose
communication is dated Madison, July %, says
with reference to the opinion of the Court:
1T may be considered an unanswcrabe arcu.
ment, and damper to the assumption of Gov. Do
ty, that the appointing power extends to all the Off
in the Territory. 1t fell like a clap of thunder
from sunny sky on the Executive camp, and since
then, at every corner of the street. and at every
nook are to be seen the knots of plodders, and
heard the low whispers of the contrivers The Gov
ernor must approve the bonds of the legal Board or
a writ of mandamus will, on Monday next, be re-
turned on him with a vengeance. This question
will settle horde of others. But the best part Of
it is, the victory thus achieved for the Representa-