Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-01-02

Neither do propose 10 say anything IN.
mere vindcation of the particular course or
of the motives of the officer SO painfully
embarrassed by these strict and hard duties.
That yindicationsif necessary TO him. must
be left to the sobet Judgment and conscl-
ences of impartial men, when they shall
have been advised of all the facts in tho
case, aud shall have duly reflected upon all
the consequences of the course Of action
which he took on the one hand, and upon
their inevitable alternatives on the other.
10 recapitulate these questions, evolved
from this controversy, which are of practi-
cal utility 10 yOuin your duty of amending
the laws, they are:
Eirst3 Can theGeneral Assembly sum-
marily and Without trial or impeachment,
rdispossess the State Treasurer ofzhis office
and make it vacant?
.SecoDdb /, Can 1t, tor this or other ends,
empower these three officers TO PASS judg-
ment upon the findings of the Examiners
report, and authorize the Governor there
upon 10 issue this order and make this ar
rest? And, '1ra.,ra M .f.tig. = sdi
Third Has the Governor, by the Con-
stitutiOn and the laws, as the laws stand,
the authority to take action in carrying this
law into execution. beyond and after the
point of Issuing the order and causing the
TO dispose Of the lesser and least difficult
question first. If the General Assembly,
after concluding that IT has the ,constituT
tiopal power to enact this proceeding, shall
yet perceive that this law Is really defect
I've in not specifically authorizing the Gov
ernor 10 enforce its iull execution, 1t is
surely your Indispensable duty to remedy
this defect by, an amendment in express
terms. IL must be observed once again,
that, If the executive power actually fails
at thatparticular point, this, your own pro-
ceeding against embeZZelment, fatally
breaks down and stalls its whole remedy at
the most critical-the vltal-Point Of its in
tended force, ,ass tag ebnul s'sf.9 ana 10
The first great question Of constitutional
power in the General Assembly really un-
derlies and incloses all the, others. And be-
cause It's decision must chiefly control your
action, so that you must either repeal the
law, as being beyond the power of amend-
ment, or else you must lend 1t the "blesseG
amending hand" 1t seems, also, my duty
to say something upon 1t. / feel the less
repugnance or 3elicacy now in doing so,
that it can do no further injury to the case
of the late Treasurer. This point in the
process of bringing him into court is irre-
coyerably passed. He is now in court, to
be tried for an offense, which there Is no
manner of doubt, the Legislature had the
power to make an offense and 20 subject to
legal restraint or punishment. 1t may be
true, that this process was unconstitutional.
If SO, a great wrong has heen done him, and
an injury committed against public justice
and the character OF the State; but he Is
no longer specially Interested IN that as a
living question. But it does, nevertheless,
greatly concern the State to see to it. that
this or like wrong shall not be again COM
-. An.. II VA N ra-
straint upon myself in this matter, also, be-
cause sensible and disinterested men have
expressed doubts to me of the constitutions
ality of that section, and the Auditor of
State, whose opinions have, and are entitled
to, much influence, in his report suggests
its repeal. This brings up that question:
The constitutional guarantees which are
presumed to be alleged as invaded by this
summary proceeding. are, the right of trial
by Jury In Section /, Article |, Constitution
OF Ohio; theinyestiture of"the Judicial pow
er of the Statep in the courts of justice, in
Section 8, Article | !; the lst and I'd Sections
of Article HI, which makes the Office Of
Treasurer of State" constitutional Office,
and fixes its term. and the 24th Section of
Article III, that all officers CT the State may
be impeached for any misdemeanor in of
fee. E.e G-u.,l... 7i...j rgsr f..arr. 4a.
The first point does not seem to me, to
have any force or application to the ques-
tion. This whole Bill of Rights must be
construed to appertain to persons as such
and not to officers. The offices OF the State
were certainly never intended to become
',vested rights, - So as to preclude the State,
even in the act of their institution, from at
taching such directions and conditions to
them. asrthe interests of the State itself, in
the judgment of the Legislature, might re-
guire. Moreover such an idea Of vested
rights in offices. to be only concluded by a
trial by jury, or a sentence OF q court, has
never gone into practice in this State or
country. If other argument were necessa-
~ upon this point an overwhelming an
swer NAV be found in the 9Th Section of
Article X. r"Justices of the Peace, and
county aud township officers, may be re-
moved in such manner and for such cause as
shall be prescribed by law.p Now it. is not
pretended, that this is express authority tor
this removal; neither is it denied, that this
inclusion of all other officers might be
fairly interpreted, as an exclusion of all
others, if there existed any general prinei-
pie of right to be invaded by such an ex-
ception. But what it does prove is this !:
That, inasmuch as the Bill of Rights is of
universal application, this authority, sum-
marily to deprive any man Of bis office,
proves that this section of that bill does not
refer to Offices. sagJ anl f' .H . ai 'irh
Upon the second point, it does seem to me
very clear, that the words "judicidI potoer'
were not intended to, nor do necessarily
have the wide significati0n Claimed for
them Neither is lJapparent TO my under
standing that every exercise OF judgment
or conclusion as TO facts or law makes the
officer who exerts it a judge or a court.
Nor vet more specifically, do believe that
this act of the Governor, Auditor and Comp
troller, in this particular case, did make US
to usnrp the functions OF acourt, Our laws
and customs, from their beginnings, are full
of these instances Of discretionary power
j. officers, who are not judges. n-lt I. LN'
he remaining points are more difficult.
c.. the General Assembly, itself a'ercation
of the Constitution, take summary power
over the existence and tenure of an Office,
which, like ITSELF expressly derives its au-
thority and term from the same source ?
All L Shall, say upon that question is, that
these creations are like the stars, differing
in their magnitude; and that in these off
ferences, the Constitution did not merely
create the General Assembly very superb
or and the Treasurer of State very in
fefior power, but in many essential regards
it gave the former power over the latter
and subordinated this to that. This, too, Is
in, the nature and of the essence of the two
grants--the supreme Legislative power Of
the whole State Department of the Govern
ment, and a minor branch of the State Ex-
ecutlveLits Treasury 70 hGni9in9& @'o1 !
IN giving the proper construction to this
9th Section Of, Article Ill, iL must be re-
4 ~ tf.r14