The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-01-04
THE APPOINTING POWER.
what 10 the Meaning Of the sth Sec
ton OF the 9TH Article Of the Con.
stitutiOu?
WesroN January |. 1872,

WESTON, January |, 1879.
-ditors OF the Register:
The Sth Section reads "The Cover
nor shall nominate and by and with
the advice and consent Of the Senate,
Ia majority Of all the Senators elected
concurring by yeas and nays) appoint
all officers whose offices are established
by this Constitution, or shall be created
BY lar, and whose appointment or election
is not OTHERWISE provided for; and no such
officer shall be elected or appointed by
the Legislature" The true intent and
meaning of the words have italicised
seems to be troubling the minds OF
some persons. The words 'or shall be
created by la,c' clearly refers to officers
hereafter created; and not to existing
officers. But the meaning of the words,
'and ,0hosc appointment or election Is not
othsr~ise provided for" is not so clear.
To construe the words correctly and get
at their true intent and meaning, We
have only to look to other parts OF the
Constitution. The Constitution estab-
fishes an executive department, to
consist of q Governor, Secretary
of State, Auditor, Treasurer and
an Attorney General. 1t prescribes
that each OF these officers, except the
Secretary of State, shall be elected by the
people. The Secretary Of State is an
officer, whose office is established by the
Constitution, "aDd whose appointment
is not provided Tor" in the Constitution,
EXCEPT by the Stb section. He is not elect
ed by the people, and, therefore. the
Governor, in case OF his death or
resignation, may fill the vacancy during
the recess of the Senate by authority OF
the 9th section of same article. The
9th section reads: I" In case OF vacancy
during the recess OF the Senate in any
office which is not elective, the Governor
shall, by appointment, fill such vacancy,
until the next meeting Of the Senate,
when he shall make nomination for
such office, and the person so nomlna'
ted, when confirmed by the Senate "a
majority OF all the Senators elected
~ vn.tjv-ubrrng tue REMAINDER OF the
term, and until his successor shall be
appointed and qualified. No person,
after being rejected by the Senate, shall
be again nominated for the same office,
during the same session, uulesss at the
reTaest of the Senate; nor shall such
person be appointed to the same office
during the recess OF the Senate" But
how about the State Superintendent Of
Free Schools, Auditor, Treasurer and
Attorney General! They are officers,
whose offices are established by the
Constitution, and made elective by the
people. II either of them should die
or resign, the Governor would have no
power to make an appoint
ment under the Sth section, or
to fill the vacancy according to the 9th
section because his "appointment is
cherriss prorided for in the Consttu-
ton. Section II OF article 7 provides,
"If the office of Auditor, Treasurer
State Superintendent of Free Schools
or Attorney General shall become
vacant by death, resignation or other.
wise, it shall be the duty OF the Gov
era9r 70 fNhe same by appointment, and
the appoiutee shall hold his office until
his successor shall be elected and quail
flied 10 such manner as may be pre-
scribed by law" This section, taken
IN connection with the Slh and 9th Sec
tons OF the same article, explains to my
mind very clearly the meaning of the
words land ~hose appointment or election
is not otherwise providea fer" 1t is TO
be observed that the appointment OF the
Secretary Of State is not provided for
(outside of this Sth section) IN tie Con-
stitmion. But Tor Auditor III is other |
rise pr0cidcd for in the Constitution,
and The Senate can take no control
in the matter of the Governors ap-
poiutment, or in filling the vacancy in
the said office of Auditor; nor can the |
Legislature take away this right from
the Governor. 1t is one of those wise
limitations of the Constitution placed
upon the authority Of the Legislature,
so as to keep the three coordinate
branches of the Government at arms !
length and prevent either from en-
croaching upon the powers Of the other.
And AZ for the wor Is, FOR shall BE- ere !
atcd By Iolc," allow me to explain |
their meaning, by way of illustration.
Suppose the Legislature should create
,y ldeo (ss it may OF right do) an office |
OF public improvements, to be filled by |
an officer to be called the State Com |
missioner of Public Improvements. and
provide for his election by the people ;
and in case OF his death, resignation or
authorize the Attorney Gen.
eral to fill the vacancy. In this case !
the Governor and the Senate would
have nothing to do in the appointment
or in filing the vacancy; because it Is
otherwise provided for. Authority could |
be given to this Commissioner OF Public
70 appoint q Board OF
Directors tor the Penitentiary, with the
same powers they now have. and COL
lectors OF Tolls ard Superintendent o
Rosds, &c. None OF them III even !
Z fficers) would come under the sth sec |
ton, because their appointments would
be other wise provided tor By la,o. Hence |
from The foregoing reasoning we have
the following conclusions: Wherever
provision lie made 10 the Constitution
for the electioaoof ans officer by the
people, aud q VACANCY in that Office is
required to belilled by the Governor, or I
any other designated officer, such as
Circuit Jufipe. who IA sauthotixef TO