The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-21

eInOI TIC pOWcI VI oppoiutiuS NhSS'oi'
Of the Penitentiary. or the duty Of per-
forming any other legitimate function.
1.-THE General Assembly conferred upon
the incumbent OF, the guberDatorisi
chair official public powers es an is-
dividual, 80 that he would continue 10
exercise the powers thus conferred,
whether he continued to hold the Office
OF Governor or not, it would seem quite
manifest, to my mind, that the Genera!
Assembly crested an Office in such CO:
and exercised the appointing power,
Blu, these questions are not before US
except TO comment upon, with q
view 70 aid those who seem to be
unable to distinguished between an
office 40 officer, between official powers
conferred by law, uapon sud annexed
TO an office, and the Individual incum-
bent or officer" We have quoted thus
largely from the opinion Of Judge Swan
because the opinion is 10 point in this
case and is able, and as it seems to US
uuanswerable. There is no question
directly or necessarily arising IN this
case ss to the power or authority IN the
legislature tn authorize the Board O.
Public Works 10 fill vacancies, or as TO
what is the proper construction 10 b.
given TO the 9Th section OF article I.
The appointment conferred upon the
complainant here is not ia fiji vacaH'
cy but is an original appointmen. for
full term. -.
Under the suthori!ias, principles,
facts aud views above stated, We sre Of
opinion that The act o. the Legislature
af this State RAISED on the li'h day o
January, 1873, entitled ".ir Get amend
ing and re~enac.irg gectionl c! Chapse'
SC OF the Code OF West Virgins
concer0ing the Board OF Pn|l;c Works,
and, epacting that said section &c
am ended, and re~enacied 10 az to read
as follows: Il. Tbs Governor Auditor.
Treasurer, Superintendent q Free
Schools, ard Attorney General. ehsli be
and continue corporation under ths
s,ylc OF the Board Of Public WorkG,' e
not repugnant 10 the Constitution OF
| this State but ia valid and binding,
And we ara ais further OF the opinion
that 90 much OF the act passed bY the
legislature OF this'SlGte on tie fret day
Of April, 1878, entitled "An act 10
amend and rc-ersCt seciors Two, six,
seven, fourteen and nineteen, Of chap.
ter 1863, % the Code OF West Virginia,
as il directly Involved in anj applies
to this case aud especially Ne parts
thereof by which it is enacted that The
Board OF Public Works shalt on The
18th day Of April, 10 tie year ]SI5, "ed
every two wears, thereafter. appoint a
Superintendent OF the Pe"itcntiary ai
Moundaville, whose term OF service
shall begin or the first day OF MAJ nexi
ate. bis appointment, sod WAC should
have the power a"i perform the duties OF
said Office prescribed by law, and ehaIl
receive 20 az annual sa'gTy not 70 e1-
coed $3.50, AZ tbe discretion OF toe
Board OF Puhiic Works, is uot repu.-
nant TO the Constitution Of this State,
but is ard are valid aud binding. Both
OF which said acs OF the Legislature are
mentioned ami relied upon by the de-
PENDANT IN hi. return TO the maN1Hm"3
uiSi issued and rs.Iynei IL this cause
1t is ther!ore considered by us that
the return OF ,hc defendant Soal!cross
made TO the said writ o. maadamHS niSl
issued and returned in this cause, is in
sufficient in law. and that upon the de-
murrer filed by the complainant Bridges
to the said return, the law is IN favor OF
the complainant and that tie said de-
murrer must be sustained, ard that a
premptory mandsmns DO Issue in the
this cause. and that the complainant
Bridges DO recover against the defend
ant ShalIcross his COSTS about the pros
ecu,ion of this proceeding in this court
expended.
In this opinion delivered by Hay
mond, Judge. Judges PAUL, Hoffman
ard Moore concur