The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-06-26

an Office already existing and filled ad
|ditional power and duties, upon wha
ground can it be claimed that this is tn
exercise by the General Assembly Of tn
appointing power? Certainly upol
this only, that the General Assembl.
has enlarged or added to the powers
and duties of an existing Office. Blu
this is really absurd; for, if adding t.
the duties or powers of existing offices
is an exercise OF the appointing power
then every new duty required or power
conferred upon any State, county o.
township officer. must be deemed th'
exercise by the General Assembly Of th'
appointing power and forbidden by tht
constitution.
"But these fallacious positions arise
out of a misapprehension OF what il
meant by the exercise OF the appoint
ing power. An office, until filled, is ar
impersonal thing, an incorporeal here
ditment. 1t is filled by the exercise o
the appointing power and when filled
the office and officer both exist. The
office itself may by law be enlarged in
its powers, or new duties epjoined, with
out touching the appointment or tenure
Of office OF the incumbent, or his suc'
cessor. 1t would, therefore, seem high
ly probable, although the question is moi
before US, that the General Assembly
could without displacing or appointing
Governor of Ohio, annex to the office
Of Governor the power of appointing
directors Of the Penitentiary, or the duty
OF performing any other legitimate ex"
ecutive function.
"If the General Assembly conferred
upon the incumbent OF the gubernato.
rial char official public powers as an
individual, so that he would continue
to exercise the duties thus conferred,
whether he continue to hold the office
Of Governor or not, it would seem quite
manifest 10 my mird, tnat the General
Assembly created an office in such case
and exercised the appointing power"
l have quoted thus largely from thl:
case because it is the one quoted and
relied on by the Governor in his mess
age to sustain the extraordinary posi-
tions there taken, and because so tat
from sustaining those positions, 1t up
roots and destroys every vestlge O
them.
The argument Of the message that
the act makes the Governor, Auditor
&c, public corporation, and that the
members OF a public corporation are
public officers ia foreign to the question
under consideration. Concede it to bt
true, and it makes no difference, what
ever, as to the constitutionality Of the
law. The officers composing the cor
poration are not made public Officers
by virtue of the act Of the legislature
but by virtue Of the constitution itself
and they were such public officers be-
fore aud at the time OF the passage o.
the act.
The question involved in this con-
troversy is not as TO what words, phrases
and terms can be constitutionally nsed
in conferring additional powers and
duties upon the Governor and the other
State officers named, but the,,question i:
whether the additional powers and
duties, themselves, can be conferred
upon them in accordance with the con-
stitution.
II the power exists, under the con-
stitution, 10 impose upon the State Of
fcers, or any OF them, official powers
and duties, not strictly pertaining to
their offices, as such, it cannot be mate
rial as to the language used by the
legislature in the imposition OF these
powers and duties, so that it is clearly
done.
Suppose that the act in question in.
stead OF saying that the officers named
should be a corporation under the style
OF the BOARD Of Public Works" had
said that they should be er ofTcio Com
missiouers of Public Works, and he'd
then conferred upon them, as such
Commissioners, all the powers conferred
upon them as a corporation. except the
power OF appointment to office, would
there have been any difference in the
legal effect of the act in that form, from
wba, it is in its present form, go far q.
its cons;itutiouality' is concernedI
submit with perfect confidence thai
there would not.
And here it must be borne in mind
that the cops,itutionality OF the act o.
January IA, 1878, is not questioned on
the ground that it vests in the Board oI
Public Works the power OF appoint
ment to office, but because the act is 8
legislative exercise of the appointing
power, and because the members OF the
board hold two offices at the same
time.
And now let us see what the CONS
bined opinion OF the legislature and the
Governor WAS upon this Identical ques-
ton on the lst day OF April last, seven
days after the date OF the celebrated ve-
to message that have been consider
ing.
On that day a bill which had peer
passed by the legislature in relation tc
the public printing was approved by tht
Governor, the first section OF whict
reads as follows: The Auditor
Treasurer and State Superintendent o
Free Schools shall be CT cfieio Commls'
sioners Of Public Printing" And ther
the act goes on to impose on these oth'
Gers. as such Commissioners, duties o
the greatest importance and responsl'
bility.
This act is subject to the same ohjec'
tiops, precisely, that are made to the
act IN relation to the Board OF Public
Works, to Wit that it is a legislative
snpoiptm ent to Office, and that these
Com missioners hold two offices at the
same time.
Had the act declared that Johr
Smith, David Jones and Thomas
Brown should be commissioners OF pub
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