The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-10

thing, not the name, is to be regarded
This is the substance of the decision.
In the opinion of the court in tha
case it was said & Ohio s. r. $3.50:
"Do The powers and duties devolveC
on the defendants [Kennon, Medber.
and Caldwell. by the section OF th
acts above quoted, constitute them Off
GERS or not:
What in an Office? Among lexi
cographers, Webster defines the word Il
signify a particular duty, charge O.
rust conferred by public authority ant
for public purpose.* In case in q
Johnson's Rep. 492, Plat j., delivering
the opinion of the court, defines the
legal meaning Of the word to be, ar
employment on behalf OF the govern
ment in any station or public trust, mo-
merely transient, occasional or inciden
tai.
IF we accept either or both OF these
definitions as substantially correct, il
is clear to our minds that, II these stat
utes are held valid, the defendants are
officers. Theirs is a public duty, charge
or trust, conferred by public authority,
for public purposes of very welghty
and important character. Their duties
their charge and trust, are not tran
sient, occasional or Incidental, but DUR
able, permanent and continuous"
In this case one OF the judges, Swan
delivered his own separate opinion,
which upon another point not neccess-
ary for the decision OF the case then
under consideration, has been quoted
at large ard greatly relied upon by one
of the opposiDg counsel. Judge Swan,
however concurred with the court in
deciding that the acts of the Ohio Leg
ture constituted a legislative appoint
ment to Office, in violation OF the Con-
stiiution OF the State.
In his opinion e Ohio S. r. 5SG), he
said: "In the exercise OF these powers,
the Board OF Appointment is made q
public tribunal, rot only to select, ap-
point and fill vacancies in State offices,
but to sit in judgement on the official
conduct OF Stale officers and remove
them for certain causes, and appoint
others in their place. Those powers
are not casual or temporary The
learned counsel on behalf of William
Kennon and others, had not the bold
ness to deny that the Board constituted
by these laws, was covered with public
official functions; and it cannot be
even plausibly contended but that the
Board is vested with authority to act
in matters relating to the public inter-
est. In so saying, tits simply announcing
the definition Of an office. lndeed, the
selection and appointment OF State Off
GERS, and the filling Of vacancies, are
among the highest powers and most
delicate public trusts that can be delega'
ted, for upon their proper exercise de7
pends the whole action OF the gov
ernmenL."
The public functions which the Leg
islature of our State have confided 10
their Board Of Appointment" are, as
I have already said, more extensive
than those which were attempted to be
delegated to William Kenpon and his
two sssociatesby the Ohio acts.
Ia the North Carolina case to which
I have referred, and in which the Leg
islature attempted TO confer a ljmitvd
power Of appointment on two existing
officers Of the State, the court held that
this was investing those officers with a
different office from that which they
before held, and that the Legislature
could not do this under the Con sii!u-
ton oftbe State.
In the case OF the Communicable U
Gushing, 90 Mass. r. .j92, it became
material, in criminal proceeding for
assaultipg a police officer while be was
in lawful execution of his Office, 10 Get
ermine whether E. B. Place. the per-
son who had been assaulted, was, under
the statutes OF the State, lawfully ap-
pointed police officer. The tc!ec;men
who by law had the power Of appoint
ment, bad voted that E. B. Place "be
appointed on police duty" and it was
argued that he had not been appointed
to the office 10 the language of the
statute nor substantially in conformity
With it, and that an appointment 10 du-
~ is not an appointment TO Office. But
the Supreme Cour, OF the State decided
that the appointmen OF Place on police
duty constituted him a police ollicsr;
aud this decision was made against the
accused in criminal prosecution, where,
the utmost etrictness OF construction
prevails in favor Of the defendant.
10 Bacon's Abridgement, work
which has always been celebrated for
the accuracy and completeness Of is
definitions, it is said, under the title
Offices ard Officers," letter A: "Of-
fees are distinguished into those which
ere OF public, and those which are Of
a private nature and herein it is said,
that every man is a public officer who
hath any duty concerning the public;
and he is not the less q public officer,
where his authority is confined TO nsr-
row limits, because it is the duty OF his
Office and the nature OF that duty which
makes him public officer, and no; the
extent OF his authority"
The term "office" is explained by
Chief Justice Marshall in the case Of
the United States rs. Maurice, . Brock.
enbrough's r. l02-l03, where the ques-
tion arose whether "an agent OF tort'f-
cations WAS an officer OF the United
States. IAN Office" said the Chief
Justice, "is defined to be q public
charge or employment, and he who
performs the duties OF the Office is an
officer. Ifemployed on the part OF the
United States, he is an officer OF the
United States. Although an Office Is
an employment, it does not follow that
every employment is an office. A man
msy certainly be employed under g con-
tract, express or implied, to do
an act OF perform service, without
! bscon;no an officer. Prt II a drty be