The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-07-10
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ARGUMENT ON DEHGLF OF TIE DEFEND
...- ANT. ~, so
pp.opose to discuss the legal quest onl
arising on the demurrer 10 the return, and
will not attempt to manufacture party
pamphlet. Indeed, untl l saw how skill
fully II had been done, l supposed The
conversion of an argument on q demurrer
into political hnangue to be q task o.
extreme difficulty. But I cannot initiate
the example. Tho Governors message
81 frequently referred 10 on the other side
ISL think, an able, Well-reaSoned State
paper but so far as am concerned II
must stand on its own merits.
The act of January IA, 1873, passed
alter the present constitution OF this state
tool, effect, amends and re-enacts the first
section Of Chapter Sc of the Code OF West
yirpini. so as 10 read as follows: II.
Tuc Governor, Auditor, Treasurer, Su-
.n.rinteudeut OF Free Schools and Attor-
new General shall be and continue cor
porslion under the style Of the Board q
Futile Works." (ActS Of last Se&sson, Page
~ ~,
The powers and duties Of this Board
are prescribed in various portions Of the
Code, and of the acts OF the last session
Chapter so OF the Code provides that
the Cumberland Road and all works
OF internal improvement owned by
the State shall be under the care
and internal control OF this Board
They are empowered TO appoint collectors
of toll Tor said road and works OF i'm
provement, and Superintendent Tor any
Of them, and to fix the amount OF toll
subject 10 prescribed mGzimWm, and
provide for and regulate the collection OF
the same. 1t Is made their duty 10 apply
the net income derived from said road
and works to the repair and preservation
Of the same, and pay the surplus, II any,
into the treasury OF the State. (Oode Of W.
Va, pages 413, Ala.
BY q provision Of the Code, (pags Y,
&c. 10y the appointing power may remove
from office, In cases where there Is not
different provision made by law.
An act OF the last session, passed March
%, 1878, provides that this Board shall
appoint, and remove at their pleasure,
nine directors for the West Va. Hospital
Tor The Insane, and fill all vacancies that
may occur. (AetS Of last ScSston, page l62
Another act passed the same day, makes
it the duty Of this Board TO appoint the
State Librarian, (AeLs Of last session, page
1887 Another act passed April I, 1873,
provides that this Board shall appoint the
Directors and Superintendent Of the
Penitentiary,. fill all vacancies in said Of
tices as they occur, and fix the compensa-
ton Of the officers, subject 10 prescribed
IRdrimum. The Board arc expressly au.
thorised TO remove the Superintendent Of
the Penitentiary, Acts Of last session, page
40, l7l,) and they may remove the Di-
rectors 6y virtue Of the provision OF the
Code TO which have already referred.
Other acts Of the last session Indicate
the general character OF the legislation
respecting "the chief executive power."
One will mention. The act Of March
"a, 1873, requires the Governor TO appoint
three Uaccine agents, and this seems 10 be
the only vestige Of the appointing power
which the Legislature, so far as they
could control the matter, intended 10
leave in the hands Of the chief executive
Of the State. (Aets Of the last session,
page 143, 144l
Upon this legislation two questions
arise, which are distinctly presented by
the Defendants return 10 the n1GHdGmuJ.
Isthe act OF January "A, 1873, q legisla-
tive appointment to office, in contrayen:
ton OF the eighth section Of Article VII
OF the State constitution
Do the persons who hold the positions
and exercise the powers assigned to them
by this act, hold two different offices, in
conuaventon OF the fourth section OF the
same Article?"
On these questions, We maintain the al
Armative.
This eighth section cannot mean that
the Legislature shall make no appoint.
ment to office unless it be so provided by
law; for this would be in effect to say, that
they shall make no such appointment un-
less they please. The Constitutional pro.
hibition is, therefore, general. No officer,
whose Office Is established by the Consti-
tuition or shall be created by law, shall be
appointed or elected by the Legislature.
Our opponents concede this 10 be the pro.
per construction Of the clause.
To this restriction on the legislative
power there is ono exception. The TWEEN.
ty.feurth section Of Article VI provides
that, 1.-THE Senate shall choose from It's
own body President, and the House oil
Delegates from its own body a Speaker.
Each House shall appoint It's own officers
and remove them at pleasure" Beyond
this, the mandate Of the Constitution to
the Legislature Is: Keep your hands of
from the appointing power. We, the poo.
pie, have not entrusted II to you.
Is the act Of January IA, 1878, an dp-
pointment TO Officer
In The State Y. AeCOIliSter, II Ohio r.
40, under an act prohibiting any citizen
from holding, BY appointment al The same
time, more than one oil the offices therein
mentioned, the question arose as TO the
meaning Of the words, BY appointment
The court say (page 52): The Constitu.
ton Of the State contemplates two differ
ent modes Of comforting office; one Is, by
appointment-the other, by election. And
careful examination will show, that
whenever an office Is 10 be conferred by
the people, or by any considerable body Of
the people, II is spoken Of as an election.
Whenever 1t Is to be conferred by an indi-
ViduAl, as the Governor, or by a select
number Of individuals, as by a judicial
court, or blythe General Assembly, Il Is spo.
ken Of as an appointment" The same 70.
mark is applicable to our own Conslitu.
ton.
1.-THE position assigned by the act Of
January IA, 1873, to the Auditor and his
colleagues DO an office, 1t Is, therefore, an
dppoiStmeAt, Tor the office Is thereby con
Je1raa and it Is q Legislative appointment
Tor it Is conferred by the Legislature.
1.-THE term appointed" say the court, In
SO Conn. r. Az, means named, or dEIi1'
mated for, or assigned to an office" The
Auditor and his colleagues though moi
named, ore designated for and aSSlgnedto