Cleveland daily leader. [volume] ([Cleveland, Ohio]) 1865-1873, 1866-01-03

Z my duty 90 sag something uPon1b- Zee
: 1.-THE less repugnance OF deficacy now il
! doing SO, that It can do no further injur,
: to the case Of the late Treasurer. Thi
+ point in the process Of bringing him int
cenrt i-sirrecoverably passed. He is nov
in court, to be tried for an offence which
/ there is no manner Of doubt, the Legisla
turs had the power to make an otenc'
and to subject TO legal restraint or punish
ment. 1t may be true, that this process
was unconstitutional. If so, e great wrong
has been done him, and an injury com
mitted against public Justice and the char
acter of the State; but he is no longer
specially interested in that as a living
|, question. But il does, nevertheless, great
" concern the State to see TO it, that this
or a like wrong shall not be again com
mitted in her name. l have the less re-
straint upon. myself in this matter, also,
because sensible and disinterested men
have expressed doubts to me of the con-
stitutionality 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. demonstrations guar
antees, which are presumed to be alleged
as invaded by this summary proceeding,
are, the right Of trial by jury in Section l,
Article I, Constitution Of Ohio; the in
vestiture of athe jzzdieidt power of the
State, in the courts of justice, in Section
5, Article L the LIST and I'd Sections Of
Article III, which makes the Office of
Treasurer of State a constitutional office
and fixes its term, and the Gath Section of
Article III, that all Officers of the State
may be impeaehed for any misdemeanor
in office.
The first point doas not seem to me, to
have any force or application to the ques-
ton. 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 be-
come "vested rights, so as to preclude the
State, ever in the act of their Institution,
from attaching such directions and eondi-
tons to them, as the interests of the State
itself, in the judgment of the Legislature,
might require. Moreover, such an idea of
vested rights in offices, to be only con-
cluded by a trial by jury, OF a sentence of
a court, has never gone int practice in
this State or country. If other argument
were necessary upon this point, an over
whelming answer may be found in the 9th
Section of Article X HJustices of the
Peace, and county and township officers,
may be removed in such manner and for
such cause as shall be prescribed by law"
Now 1t is mot pretended that thisis express
authority for this removal; neither is it
denied, that this inclusion of all other Off
GERS might be fairly interpreted, as an ex-
clus on Of all others, if there existed any
general principle o right to beinvaded by
such an exception. But what it does prove
Is this; That, inasmuch as the Bill of
Rights is of universal application, this
authority, summarily to deprive any man
of his Office, proves that this section of that
bill does not refer to Offices. 7r
Upon the second point, it does seem to
me very clear, that the words stjNdiciaL
poaoeT' were not intended to, nor do neces-
sarily have the wide Specification claimed
for them. Neither is it apparent to my
understanding that every exercise of judg-
ment or conclusion as to facts or law
makes the officer who exerts it a Judge or
a coatt. Nor, yet more specifically, do II,
believe that this act of the Governor, Aud
tor md Comptroller, in this particular
case, did make us to usurp the functions of
. court. Our laws and customs, from
heir beginnings, are full of these instan-
ees of discretionary power in officers, who !
are not judges. e
The remaining points are more difficult.
Can the General Assembly, itself a crea-
ion of the Constitution, take summary
lower over the existence and tenure of an {
'thce,i which, like ITSELF expressly derives !
IS authority and term from the same !
All L shall say upon that ques- |
ion is, that these creations are like the !
tars, differing in their magnitude; and !
hat in these differences, the Constitution
lid not merely create the General Assem- I
'ly a very superior, and the Treasurer of '
State a very inferior power, but in many !
ssential regards it gave the former power Q
lver the latter and subordinated this to !
hat. This, too, is in the nature and of !
he essence Of the two grants-the supreme '
legislative power of the whole State De- q
'artment Of the Government, and a minor a
ranch Of the State Executive-its Treas |
ry. 9'I +
In giving the proper, construction to ?
his oath Section of Article III. it must t
e remembered, that, time out of mind. thu Q
ourts, against the grammatical powers of I
hese auxiliaries, have repeatedly held Q
may to mean Hshallr-that i. as mot I
eing permissiYe but Imperative in its q
ense. If this be the construction in this t
Instance, then our whole argument is con. ?
luded, and against this statute. IThiscon- q
would make the trial by q i'm c
eachment as the sole. mode of dispos- a
essing these defaulting "Ohicers ofState,y a
f their powers to do wrong in Office. Il
o not know that I could, if 1 would, by g
rotractlng this document already much D
long, acknowledgements these doubts. P
'ut L take occasion to caution the General $
lsembly net too hastily to adopt q con- u
'ructlon which deprives it of this authori- @
Ii you will only consider all the con- g
of leaving in Office a Treasurer. O.
no shall have been detected in the en- e.
Excitement or theft of the public money. n
ntil he can have been convicted bv either v
t these modes Of public trial by his peers Il
will discover that the State is, indeed. o.
a remedy in these most injurious d.
Emergencies. If the Constitution saws So p
2 all means, at all sacrifices, obey it. But k
mot too rashly conclude SO harshlv
5ainst the good sense of that instrument. tt
GU may be told that the legislativebranch Fl
government has the power to suspend (d
lie officer on Suspicion until he shall be Fl
nnd guilty. But 1 apprehend he must ST
a sharp casuist in legal determinations 81
ho can show a substantial argument for L
MS authority, which escapes the oonstitu- g
onal objection to the summary removal. o'
nd i beg leave 10 add, Furthermore, that II
king the whole case together, Lam, my re
II, Inclined to dissent in opinion from OF
lose who deny your authority in this be- "
alf. The subject is, however, of both sufi- ST
ent moment and doubtto requirethe most Il
Irefnl n conscientious consideration CT
action by your body. m
To return to tue statement of the pro- IN
finding me fixed in this purpose g
" violating this office at any hazard, b.
10 keys were surrendered upon the terms n
hich l myself had originated and pro- et
)sed, or rather indicated as to be propos- L
!, several days beforehand. Other obsta- tt
es were then thrown in the way of the eo
w examination and account prescribed p'
this Act. But as they, too, were ar CT
nged in ~consonance with these princi- it
es and my resolution, and as their speci- te
,ation could serve no public good, and 81
ight possibly do some injury I do not "
'em i necessary to particularize them. m
In this state Of things, and after this a
of the keys, and the examine &c
On of the treasure and accounts between vi
e Auditor and the late Treasurer, fall te
alters being found right upon the basis ST
the Examiners report,) l received, by ia
e hands of his counsel, on the 18th of th
,ptember, DR.. Dorsey's letter of resigna- at
IN, SO called. Here was a new doubt of to
Ought the Governor-could he tn