The democrat. [volume] (Weston, W. Va.) 1868-1874, 1873-07-28

shall bs steatei BY law, anu whose
appointment or election is not other
wise provided for: aud no such officers
shall be appOiH,sd or elected by the
legislature"
Il is argued By the counsel for de-
PENDANT, frst, that the act Of January
II. 1873, 10 question, is u legislative
appointment TO Office, ia cOntraventiOh
Of the said Sth section Of article 7 Of
the constitution and, second, that
the persons who hold aud exercise The
power assigned to them by said act.
bold two different Offices, in contra.
ycution Of the same article, These
propositions the defendant af6rms as
the reason Why the acts Of the legl'la.
turc are null aud void. The PROPOSE
tons are affirmative, and it is for the
defendant to show to the court clearly
and beyond reasonable doabt, that one
or both Of them are true. Has this
been done il the question to DO dcci.
ded? 10 diIpOsing Of these PROPOSE.
tons We propose to dispose ofthe sec.
Dad proposition first. 10 order to a
right understanding Of the constitution
upon the questions at issue it is nc.
cts,ary that We should here quote a
few other sections thereof. Article 4
Of the constitution is entitled "elec.
lions and officers" and the Sth section
thereof is 10 these words; "'rhO leg.
islaiurc, 10 cases no! provided for 10
the constitution, shall prescribe By
general law, the terms Of Office, pow.
ers. duties aud compensation Of all
public officers aud agents, and the
manner in which they shall be elected
appointed aud removed" Article 5 oil
the constitution is US follows THE
legislative, executive and judicial de
partmsnts shall DO separate and dis
tinct, so that neither shall exercise the
powers properly belonging TO either o.
The others; nor shall any person ex'
erci,c the powers Of more than one o.
them ut tho same time, except thai
justices Of tSo peace shall 30 eligible
the legislature" Article I, section
Of the constitution, which is entitled
Executive department" reads thus
"Tho executive department, shall con
sist Of a governor, secretary Of state
state superintendent Of free schools, au
ditOr. treasurer and attorney general
who shall bs OK Ofiicio reporter Of til,
supreme court Of appeals. Their tern
Of Office respectively shall DO 1 years
and shall commence on tho 4ih day o
March next after their election. The,
shall. except the attorney general, re
side aetlc seat Of government during
their terms Of office, and keep there
the public records, books and papsrl
pertaining to their respective Offices
and shall perform such duties as INA,
DO prescribed by law" The 10th sec
ton Of article 6 Of the constitution
reads thus: 1.-The legislature shall no
confer upon any court or judge tbt
power disappointment to office. fur,heI
than the same is herein provided for
Article s, section 81 Of the conslitu
ton reads thus: Whenever the leg
islalurc is expressly prohibited by thii
constitution from doing any particular
act, and tue same shall be dOuo in vic
la,iOn Of such prohibition, it shall b.
the duty Of the courts, upon prope
case presented before them, to declar,
such act null aud yOii." II is main
tanned By tho counsel Of the complain,
ant that the said act Of the 18th Of
January, 1873, in substance aud ef
feet simply prescribes additional pow
ers and duties to DO performed by Of
6ecrs already elected by the people, apt
that It does not amount to an appoint
ucn, to an Office created by law, bu
that il only amounts to requiring tht
officers Of tho Iecutivs department b,
virtue Of their respective Offices /,
which they had been elected by th,
people, to act as members Of the board
Of public works /; that i. 10 substance
simply aunexes additional powers auj
dutic, to their respective Offices. Tha
it has been a time honOred usage il
Virginia and continuing in West Yir.
GINA ever siucc its formation to caus,
certain duties which might have been
assigned TO officers specially appointed
or elected for the purpose, to be per
formed by officers already appointed
for general service. and associated b.
law 10 the form Of a board or corpora
ton for the supposed benefit Of The
united counsel Of several, and for Iht
more convenient discharge Of such du
ties, aud that the acts prescribing thi.
, form OF service have never been qucs
toned as unconstitutional, either be-.
cause they violated tho provision il
tho constitution separating the tire,
departments Of government, forbiidiul
the exercise BY either of powers be-
longing to the others, or tho exercise
BY any person Of the powers Of more
thIn one Of thsm at the same time
with the single exception Of permit.
ting justices to be members Of tho leg
islaturs) or the provision forbiddinl
csrtain officers to perform tue duties o
any other Office during their term OIL
service. 10 the case Of Sharp vs.Rob
inson, 8 Grattan, SIS, it was decided
BY tho court Of appeals Of Virginii
that 1.-THE &c. Of March 3lst, 1915
s.ss. acts, p. 81, establishing a specia
r ..