Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1872-03-22

had the power to appoint commissioners,
as it is stated he has assumed to do, being
of opinion that the Board of Trustees is il
legal, he has no lawful authority to displace
the trustees; they have the constitutional
right to have their claims determined by
the courts, and the Governor is not judi
cial Officer-hiS Office ceases when he makes
the appointments, If, indeed he had power
to make such appointments i'll any view of
the matter.
But in no aspect of the whole matter
can the Governor lawfully make any APP
pointmentS as those the above statement
of facts suggests that he has undertaken
to make. For if the trustees are not
officers under the constitution of the State,
then the act in question is valid and the
trustees are in all respects legally appoint
ed-if they are officers, then under the late
decision of the Supreme Court in the case
of Clark Us. Stanly, they must be nomi-
mated by the Governor and be appointed by
him by and with the advice and consent
of a majority of the senators elect. In
this case the court hold that the Legislature
cannot confer on the Governor or any other
person power to appoint officers. There is
no constitutional provision giving the Gov
ernOr power to make such appointments.
The Constitution prescribes in what cases
he may appoint, and such appointments as
those in question are not embraced. He
has no power not conferred in terms, for
the reason that the power not expressly
conferred on the Governor or some other
agency, is reserved to the people and re-
mains with the Legislature under the Con-
stitution. "ln creating a legislative de-
partment and comforting upon it the legis-
lative power, the people must be under
stood to have conferred the full and COM
loft rs in ha
ercised by the sovereign power of any
country, subject only to such restrictions
as they may have seen fit to impose, and
to the limitations which are contained in
the Constitution of the United States. The
legislative department is not made spe-
cial agency for the exercise of specifically
defined legislative powers, but is entrusted
with the general authority to make laws al
discretion. Cooley on COnst. Limitations
p. 81.
We therefore say that our opinion is:
First, That the persons named in the
act mentioned are trustees of the InstitUI-
ton for the Deaf and Dumb aAd the Blind
they are so primo .tdcie, in all respects
legally-the law so presumes, and in any
contingency they are SO de fdctO, and as
such their acts are as good and valid fol-
the purposes Of the Institution, the State
anu the plolIc, tS ii LHcy were III I'LL IT,
spects legal.
Secondly, That his Excellency, the Gov.
ernor, has no lawful power to displace OF
remove the trustees by appointing ''com
nlissioners" to act in their stead, or in any
other way, until the courts shall have de-
cided in regular way upon the validity Of
the act Of Assembly SO questioned.
Thirdly That the board of trustees
have the right, it is their duty and they are
bound by law, while they remain i'll theil
places, to continue to exercise their pow
ers and discharge their duties according K
law, as such trustees,
And fouuthly That they are well emit
tied to have the money in the treasury
appropriated by law for that purpose, t
carry on the business and purposes of tht
Institution, and it is the plain duty of The
Auditor to audit proper acquisitions fol
proper amounts Of money from time tx
time, and as plainly the duty of the Treas
urer to pay the same.
A. S. MERRIMON,
DAN'L q. FOwLE,
BUSBEE IL BUSBEE.
Raleigh, March IA, 1872.