The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-10
SUPREME COURT OF APPEALS.
WILLIAM l.. BRIDGES
THOMAS p. SHkLLCROSS.
Upon q Mandamus nis:.
Argument by Daniel Lamb, ESQ.

L
tions arising on the demurrer to th'
return, and will not attempt to manu-
iacture party pamphlet. Indeed, un'
til l saw how skillfully it had beer
done, l supposed the conversion Of an
argument on demurrer into politica
harangue to be task Of extreme Diff
Guilty. But cannot initiate the exam
pie. The Governors message so fre-
quently referred to on the other side, is
1 think, an able, well reasoned State
paper; but 30 far as am coacerned. il
must stand on its own merits.
The act of January IA, 1873, passed
after the present constitution Of this
State took effect, amends and re,cnacts
the first section OF chapter SO OF the
Code OF West Virginia so as to read as
follows: 81. The Governor, Auditor,
Treasurer, Superintendent Of Free
Schools and Attorney General shall be
and continue a corporation under the
style OF the Board OF Public Works. "
Acts Of last session. mp IL.
The powers and duties Of this Board
are prescribed in various portions OF
the Code, and OF the acts o. the last
session.
Chapter 56 OF the Code provides that
the Cumberland road and all works OF
internal improvement owned By the
State shall be under the control OF this
Board. They are empowered To appoint
collectors o'tolls for said road and works
of internal improvement. and Superin.
tendent for any OF them, and to fix the
amount of tolls subject 10 a prescribed
maximum, and to provide for and reg
nlste the collection OF the same. 1t is
made their duty to apply the net income
derived from said roads and works to
the repair aud preservation ofthe same,
and pay the surplus, if any, into the
treasury Of the State. (C0de Of ", Ta.,
pages 4l3. 4l4)
By a provision OF the Code, p y, sec.
l0,) the appointing power may remove
from office, in cases where there is not
a different provision made by law.
An act of the last session, passed
March %, 1873, provides that this
Board shall appoint and remove at
their pleasure, nine directors for the
West Virginia Hospital for the Insane,
and till all vacancies that may occur.
(Aets of last session, p 1872 Another
act passed the same day makes it the
duty OF this Board to appoint the State
Librarian, (Acts of last session, p l63 }
Another act passed April |, 1873, pro-
vi1es that this Board shall appoint the
Directors and Superintendent of the
Peultentiary, fill all vacancies in said
offices as they occur, and fix the com
persation Of the officers. subject 10 a
prescribed maximum, The Board are
expressly authorized to remove the
Superintendent of the Peniten.iarv,
(Acts of last session, pages 10, III, } and
they may remove the Directors by vir
tue OF the provision OF the Code TO
which l have already referred.
Other acts Of the last session indie 5.te
the general character Of the legislatidH
respecting "the chief executive power.
One will mention. The act Of
March "a, 1873. requires the Governor
to appoint three vaccine agents, and
this seems to be the only vestige OF
the appointing power which the Legis-
lature, 80 far as they could control the
matter, intended to leave in the hands
OF the chief executive of the State. { diets
of last session, pages l43, l44)
Upon this legislation two questions
arise, which are distinctly presented by
the defendants return to the nianGamuS.
Is the act of January IA, 1873. a leg
islative appointment to Office, in contra
veution 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 Of
fees, in contravention Of the fourth
section OF the same Artic!e?*
On these questions, we maiutsin the
affirmative.
Is the act OF January II, 1873, On
appointment to office?
In The State U, McColister, ii Ohio
R. 46, uoder an act prohibiting any
citizen from holding by appoint
ment, at the same time, more than ole
OF the offices therein mentioned, the
question arose as to the meaning oi
the words, BY appointment. The court
saws (p 52): "A careful examination
will show, that, whenever an office is to
be conferred BY the people, or by any
considerable body OF the people, it il
spoken OF as an election. Whenever II
is to be conferred by an individual, a:
the Governor, or by the General As
semb'y, it is spoken OF as al appoint
ment."
II the position assigned by the &C: Of
January IA, 1873, to the Auditor and
his colleagues be an Office, it is, there
isre, al appointment for the othce II
thereby conferred +; and it is Legislative
appointment, for i. is conferred by lh'
Legislature.
"The term appointed" Gays the court
lin So Conn. R. 447, means named, o.
designated for, or assigned to an Office.
The Auditor and his colleagues, though
no. named, are designated for anc
assigned to the position mentioned il
the act of January IA, 1873. They ar,
therefore appointed to that position.
i The 9th section Of the I'd Article o
the Constitution OF Ohio provides that
aThe election and appointment OF al
sThese two sections are as follows:
Art VII. SIC. 4. "yeither the Gove.noI
STATE Superinteuden Of Free Schools, Au