South Branch intelligencer. [volume] (Romney, Va. [W. Va.]) 1830-1896, 1873-04-18


l have shown beyond reasonable doub,
that members ofthe Board of Public Works
are officers. This leads to another result.
Section four of article seven ofthe Coos'iiu-
ton provides tina; neither the Governor,
State Superintendent of Free Schools, Au-
ditor, Treasurer, nor Attorney General,
shall hold any other Office during the term
of bis service Now it so happens that
these are the persons who compose the Board
-! Public Works, aud this provision Of the
Constitution clearly makes them ineligible
to membership in this Board. BY an act
passed February Is, 1871 the General Su
periOtendent of Free Schools was declared
to be er-cgfSciO adjutan, general, and author.
lied to discharge all duties required by law
to be performed by the adju,snt general.
The question thereupon arose whether
the State Superintendent Of Free Schools,
who took 9th ;e under the new Constitution,
could act as adjutant general, as required
by the act referred to. The present attor-
ney general had given it as his opinion that,
under The Constitution, the two Offices are
Incompatible, that is to say, that the Su-
perintendent of Free Schools cannot and
ought not to discharge the duties of aaiu-
''"N SouSidl. Auu L UCleNe tue present
incumbent has not assumed to do so. In
the correctness of this opinion | entirely
cuucur. And know of no reason why the
rule thus laid down by the Attorney Cen
eral should not apply to the members of
the Board of Public Works Ia fact it APP
pines with far more force, for there is bet
ter show OF reason TO say that the act re-
quiriDg the Superintendent of Free Schools
To perform the duties heretofore discharged
by the adjutant general, simply imposed
additional duties upon him, than il is to
say that the act requiring the Governor TO
De member of the board, consisting of five
persons, exercising powers which he alone
could not exercise, merely imposes addition
al duties upon him.
Tue legal effect of an officer holding
second Office, which By law he is prohibi.
ted from holding, is to vacate the first Office
See on this point l Va, Cases 3l7, and 8
Hill, On Y. R. 93.
The embarrassing position occupied by
the gentlemen who compose the Board of
Public Works becomes evident. The Con-
stitution forbids them from holding any
other office during the term of their service;
act of the Legislature commands them
to accept a second office. Which shall
( they obey, the Constitution or the act II
they obey the Constitution, then the act is
set at naught, and remains unexecuted.-
II they obey the act, then the Constitution
is set at naught, the solemn obligations Of
these officers to support it is broken, and
their Offices would be vacated if proceed
ings were taken to effect it, ] do not sup
pose such proceedings would be taken, the
acts being done in good faith, but / sub
init whether 1t is just even to exp pose these
officers to the risk of having their Offices
declared vacant?
The bill establishing the present Board
OF Public Works was passed, am inform
ed, with little or no discussion or examina-
ton, and 1T is not matter Of surprise,
therefore, that the points above stated es-
capped attention. The present Legislature
found Board of Public Works in exis.
tence, and 1t IL not to be wondered that it
should undertake to legislate n regard to
At just as former Legislatures had done,
without recalling the restrictive or prohib-
itory clause OF the new Constitution
Tor 1t must be remembered that none of the
restrictions to which have referred exis.
ted IN the old Constitution, with one excep.
ton, and that exception is that the Cover
nor should hold no other Office during his
term My attention was called TO this sub
Ject by the question touching the adiutant
generals office, and after IN examination of
1t | am satisfied that the Governor ought
never 70 have been a member of the Board
OF Public Works /; but a mistake or wrong
act IN the past cannot justify It's repetition
in The future.
If tie foregoing views that the Board Of Pub.
lie Works is illegally constituted and organized
are correct, then there is reason to fear serious
detrment 20 the public service The Tepislature
has declared in express terms who shall consii-
tuie this board this 81 course excludes all other
persons, nod if The Office should be declared va
cant ~ would not create such va-nncv as ia
contemplated by the Constitution. when II an.
thorizes The Governor 20 Gll vacancies ia Offices
not elective. The attempt o. gu such vacancy
10 this way, would create n board not designed
by the Legislature. and would practically be the
exercise OF legislative power by the Governor
which i7 prohibited by the Constitution
have go itr referred only 20 the restrictive or
prohibi'orv provisions Of the constitutions. and
haze shown That they point with almost uuerriuy
geri".1'. 20 the fact that the appointing power
is vested .n ihe Governor. and that 30 cannot be
lod-, any other officer. But TIE positive
provisions 90 The Constitution throw A food Of
light or the whole question. and remove Eli
doubt Cu ibis point. IF any existed. Section
eight. article seven OF tLe Constitution Isl a. fol-
lows. "Ite Governor shall nominate. and bv
and wish thc advice and consent If the Senate
Ia majority of OF The Senators elected concur
ring by yeas and nays appoint an officers
whose offices are established Ly this Consiintion
or shall bee created hy law. and whose appsint-
mcnt or election is not otherwise rrovjded fgr
and no such officer shall be appointed or elected
by the legislature.
IRA