The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-04-03
WHEELING TEILLGENgER MORNING APRIL 3la

rived from the TACT that It's members hol,
other offices, for It's action would be non
the lcss valid lifts members consisted Q
persons who held no other offices In tn
State government.
We have, therefore, reached this point
That there are two corporations, OF equa
dignity in law, both the creatures Of tn
Legislature, and in both OF which tn
members arc public officers; one is tn
Board Of Public Works, and tho other !
the Board ofDirectors Of the Hospital 10
the Insane. TheLegislature has alread!
appointed the members Of the hrst nance
Of these corporations, and this bill nov
proposes to confer tho authority upon
10 appoint the members Of the other cor
poration. II the Legislature has tht
power 10 appoint the members OF one 0
these boards, has 1t not also the powe
10 appoint the members Of the othe
board? And, further than this, If tn
Legislature can confer the authority upoI
one board to appoint the members Of tn
other, Is 1t material, In a legal point o
Wow, which OF the two shall exercise thu
appointing power, that Is to say that
would be Just as legitimate, In law, for tn
Board OF Directors Of the Hospital for tn
Insane to appoint the Board Of Publl'
Works, as 1t would be for the Board
Public Works to appoint the Board o
Directors for the Hospital Tor the Insane
Therefore, in looking over tho who'll
field the conclusion seems to be irresistt'
BILE that where tho Constitution provide
that mo such officers shall be elected o
appointed by the Legislature" that 1t pro
hi6ited the Legislature from appointing
the members Of both OF these boards; tina
tho act passed this session creating &
Board OF Public Works, In which the
Legislature attempted to exercise the ap-
pointing power, Is absolutely void, ant
consequently that this bill, which CONFER
the appointing power on the Board O
Public Works, must necessarily be OF nc
effect. :,
/ have shown beyond q reasonable doubt
that members of the Board Of Public
Works are officers. This leads TO another
result, Section four Of article seven OF the
Constitution provides. that "neither the
Governor, State Superintendent Of Free
Schools, Auditor, Treasurer, nor Attorney
General, shall hold any other office during
the term of his service" Now 1t so hap
pens that these arc the persons who COM
pose the Board Of Public Works, and this
provision OF the. Constitution clearly
makes them ineligible ID membership in
this board. By an act passed February
IS, 1871, the General Superintendent Of
Free Schools was declared to be er 3DteIg
Adiutaut General, and authorized TO dis
charge all duties required by law to be
performed by the Adjuiant General.
The question thercupon arose whether
the State Superintendent Of Free Schools
who took office under the new COnstitu'
ton, could act as Adjutant General, as re-
CURED by the act referred To- The pres
ent Attorney General has given II as his
opinion that, under the Constitution, the
two Offices are incompatible, that Is to say,
that the Superintendent Of Free Schools
cannot and ought not to discharge the du'
ties of Adiutant General. And believe
the present incumbent has not assumed to
DO SO. In the correctness OF this opinion
[ entirely concur. And know OF no .reA'
son why the rule thus Ibid down by the
General should not apply to the
members of the Board Of Public Works.
In fact it applies with tar more force, for
there Is better show of reason to say that
the act requiring the Superintendent OF
Free Schools to perform the duties hereto.
fore discharged by the Adjutant General,
simply imposed additional duties upon
him, that is to say that the act requiring
the Governor to be q member Of the
board, consisting OF five persons, exercis:.
Ing powers, which he alone could not ex.
ercise, merely imposes additional duties
upon him.
The legal effect Of an officer holding a
second Office, which by law he is prohibi-
ted from holding, Is to vacate the first Of
fee. Sec on this point Va, Cases 3l7,
and 3 Hill, IN. Y. R) 93.
The embarrassing position Of tho gen
tlemen who compose the Board OF Public
Works has become evident. The Con.
stitution forbids them from holding any
other office during the term Of their ser.
vice; an act Of tho Legislature commands
them to accept second office. Which
shall they obey, the Constitution or the
acts II they obey the Constitution, then
the act Is set at naught and remains un'
executed. If they obey tho act, then the
Constitution is set at naught, the solemn
obligations of these officers to support 1t
Is broken, ard their Offices would be va.
Gated II proceedings were taken to effect
it. 1 do not suppose such proceedings
would be taken, the. acts being done In
GOOD faith; but submit whether 1t Is just
even to expose these officers to the risk OF
having their offices declared vacantp
The bill establishing the present Board
Of Public Works was passed, l am in
formed, with little or no discussion or cx'
animation, and 1t is not matter Of sur
prise, therefore, that tho points above
stated escaped attention. The present
Legislature found Board Of Public
Works in existence, and 1t is not 10 be
wondered that it should undertake to leg.
islate in regard 70 it just as former Leg
islatures had done, without recalling the
restrictive or prohibitory clause of the
new Constitution; for It must be remem-
bered that none Of the restrictions to
which l have referred existed In the old
Constitution, with one exception, and
that exception is, that tho Governor
should hold no other office during bis
term. My attention was called to this
subject by the question touching the adJu'
tant generals Office, and after an exami-
nation Of it l am satisfied that the Gov
ernor ought never 10. have been q mcm-
Der OF the Board Of Public Works; but a
mistake or wrong oct in the past cannot
Justify It's repetition in the future.
II the foregoing views that the Board
of Public Works Is illegally constituted
and organized are correct, then there Ia
reason to fear serious detriment to the
public service. The Legislature has de-
clarcd In express terms who shall con-
stituto this board; this Of course excludes
all other persons, and If the office should
be declared vacant 1t would not create
such vacancy As is contemplated by the