The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-06-28
SUPREME COURT OF APPEALS.
WILLIAM L. BRIDGES
THOMAS II. SHALLCROSS
Upon Mandamus mist
Major N. Fitzhugh's Argument.

| 1uc IcCoIu pIcoSnso shio S~SS
the complainant, Bridges, was sppoin
ed Superintendent Of the Penitentia
by the Board of Public Works, On t
18th day Of April, 1873, pursuant to t
provisions of an act of the legislatu
passed on the lst day Of April, 1S7
that he executed his official bond o.
took the oath prescribed by law; al
on the let day Of May, 1873, he ue'
manded possession Of the ofic ,foA,
Sballcross, the incumbent VIII fe,uSeu
to admit him. On the DER nano
shallcross the defendant, ss tna' ne
refused to admit him btuse the act
of the Legislature crestir the Board Of
Public Works, and Il act conierr,pg confer IN g
on that board the per to make <. IN !he e
eppointment, an are be- repugI,ant to the
constitution Of the Naee .t anu taO. OF tno , so,o
The constitutional oI 'Gese .I; '"o ,ssa a0':
ia the Question involved IN this case
and II thew are constitutional. Bridges
0i'lTe, TSs OFT appointing the Governor,
| nJ;,or M treasurer, State Superinten.
hu. Jont ~ shools, and Attorney General
~ r ,hs - oard of Public Works is un-
oo,s. 90 .itional, for the following reasons
'oTs T.s in direct conflict with the 4th
Ion of the 7th Article Of the consti-
.'1on, which declares that neither the
overnor, State Superintendent OF Free
bchools, Auditor, Treasurer nor Attor-
ney General, shall hold any other office
during the term of his service" lftben'
the Board of Public Works is an office
within the meaning OF the constitution,
the act which appoints the Governor
&c, to fill it is void.
| contend that the Board OF Public
Works is an Office:
l. Because it's duties and powers are
such as belong to an officer. Those
duties and powers are chiefly confined
to the control and management OF the
States interest, in the work OF internal
improvement, the regulation OF tolls
&c.
9. Because itfalls within the defini.
ton OF an office, as given by the Courts
An office says Judge Pratt, 20 Johns
R. 493, ''is an employment in behalf o
the governmental in any station, or pub
lie trust, not merely transient or incl
dental"
3. Itis recognized as an Office, where
ever it is referred to in the statute Law
of the State.
4. 1t is made an office by the terms o
its creation. 1t is said to "be and con-
tinue," implying duration. And it ii
created "corporstion," which is th'
general, If not universal condition OF al
public offices. They are all corpora
tions.
But il the Board of Public Works ii
not an office itself. while restricted tt
the duties appropriate to that Board
vet the new duties assigned to it by th'
act of the lst Of April, 1873. (that o
making the appointments for the Pen
itentiary) as far as these new duties anc
powers are concerned make it an office
This has been repeatedly decided. Th'
State Us. Kenpon, I. Ohio R. 555, was
of this character; the Legislature o
Ohio passed an act directing that
board to be called the State Hous,
Commissioners, "should be appointed
by William Kennon, Asahel Medberry
and William B. Caldwell" whose dut,
was to superintend the building OF tn
State House, then in course OF construc'
tion-Kennon and his Associates bat
no other powers or duties assigned t.
them except to appoint the Board o
State House Commissioners. Th
question arose in that case-indeed
was the prominent, or only question
whether Keunon and his associate
were officers; and whether tn
duties they were required to perform
created an office, the court said: ii
is clear to our minds that if the statut
is held valid, these defendants (Ken
non and others) are officers" In
case decided in North Carolina (6I
N. c.. 6 p.) the court said: The dut
Of appointing an officer constitutes G
itself a public office"
The act creating the Board Of Pub
lie Works, or filling the board with tn
Governor, &C., is unconstitutional TO
another reason. 1t is in conflict Wit
the last clause OF the Sth section OF th
7th article OF the constitution, whic
prohibits the appointment OF any sucI
officers by the legislature. The legisla
ture had the upquestioned right t
create the office, or if it had been 81
ready created to retain it, but as sool
as it attempted to fill the Office, by ap
pointment. it transcended its power, an
came in collision with this constitution
al prohibition.
Again the act creating the Board o
Public Works is unconstitutional, be
cause it imposes on the Governor, Aud
itor, Treasurer, Superintendent OF Ere
Schools and Attorney General, or som
of them at least, duties which are in
consistent with the other an,
regular duties of their respectiv
offices. The several office
OF Governor, Auditor, &C., were create
By the constitution, and were create
for q special purpose aud for specia
object; thus the Office of Auditor an
TreasurerI were created with specia
reference to the finances OF the State
and that OF Superintendent Of School
was created with reference to the wis
administration of the School law, an
the duties Of the Attorney General wei
also designed to be Of q kind pertiner
to that office. While it is admitte
that the legislature may impose oth'
reasonable duties on an officer, whic
are pertinent to the Office which b
holds; yet it has no authority to ad
to an office, especially one which ow'
its creation 10 the constitution, dutl'