Belmont chronicle. [volume] (St. Clairsville, Ohio) 1855-1973, 1858-06-24

1JThe question of the right of the Leg
slatare to take the appointing power from
the Governor, has been tested in the case
of the Committee appointed by the last
Legislature to appoint Commissioners OF
State House, and Directors of the Ohio
Penitentiary. We give below the decision
of the Court. The case was brought by
the Attorney General Uersus VIM. KENYoN
SR., VIM. B. CALDWELL, and A. MEDBER-
RY, the Committee.
BRIxKERHoFFJ. J. delivered the opinion Of
the Court.
Under Art. ii, Sec. 81, of the constitu-
tion. which provides: 'The election and ap-
pointment of all officers, and the filling OF
all vacancies, not otherwise provided for bv
this constitution, or the constitution of the
United States, shall be made iE such man
ner as may be directed by law; but no ap-
pointing power shall be exercised by the
General Assembly, except as prescribe in
this constitution and in the election OF
United States Senators; and ir these cases
the vote shall be taken viva voCe. Eie.d:
l. That the General Assembly may by
law direct the manner in which all Offices
existing or created by law or vacancies
therein shall be filled by appointment, ex-
cept in cases provided by the constitution.
2. Directing by law the manner in which
ar appointment shall be made, and making
an appointment, are the exercise Of two diff
ferent and distinct powers: the one prescri-
bing an act shal. be done, being legislative;
and the other, doing the act being admins
trative.
3. The constitutional provision which au-
thorizes the General Assembly ly to prescribe
by law how an appointment shall be made,
bv express proviso and condition witholds
| from the General Assembly al appointing
power.
4. ConcedinG that the General Assembly
NAV provide by law for the creation Of an
office in the form of a Board clothed with
the power of selecting, appointing and re-
moving all officers and filling all va, ancies
not otherwise provided for by the constitu-
ton, in all offices; and conceding an unlm-
tied power in the General Assembly to
pass laws providing for the creation OF Off
ces or Boards in such cases, even perma-
nently or for life, Questions which are not
before us,) yet the General Assembly can
not exercise any appointing power to fill
such Boards or Offices.
5. The exercise of the power of appoint
ment and removal of State officers, and the
filling of vacancies which may occur in
State offices, in high public function and
trust, and not private, or casual or Incl
dental agency; and the officers of a Board
so created by starute, TO exercise these pub
lie functions, are vested with official State
power, and hold and exercise public fran
chise and oice.
6. Emoument is a usual but not neces-
sary element to constitute an office. Au-
thority and power relating to the public in
terests, conferred by statute, and which
may be vested in Board or individuals by
election or the appointing power of the
State, create an office. Whatever less than
this may create an office. it is unnecessary
to determine.
| z. The statutes Cnder consideration
which provide for the creation of Board
authorizing it to appoint commissioners of
the State House and the Directors of the
Penitentiary of the State, and to fill all va
cancies which might occur in the Offices Of
Directors or State House Commission FRS,
and authorizing such Board or a majority 10
remuve any Director of the Pentcntiary
for causes specified. or which might by the
Board be deemed sumclen,, created officers
of a Board, aud concediDg that the General
Assembly could provide for the creation of
such Board and Offices, yet the General As
sembly could not exercise the power Of ap-