The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-07-10
HIRING DAILY lNTEIIG0RR THURSDAY MORNING. JULY 1878

upon another point, not necessary for the
decision Of the case then under Consider
alton, has been quoted at large and great
ly relied upon by one Of the opposing
counsel. Judge Swan, however; concur
red with the court IN deciding that the
aCtsOl the Ohio Legislature constituted
legislative appointment TO office, in viola
ton Of the Constitution Of the State.
In his opinion q Ohio s. Il k5OS) he
said: "ln the exercise oil these powers, the
Board Of Appointment is made public
tribunal, not only TO select, appoint and
fill vacancies in State offices, EIt TO sit In
judgment on tho official conduct OF State
officers and remove them for certain eau
ses and appoint others In their place. These
powers ara not casual or temporary. The
learned counsel on behalf OF William
Kennou and others, had not the boldness
10 deny that the Board constituted by
these laws, was clothed with public Oiici.
al functions; and 1t cannot be ;even plaus-
IDLY Contpnded bu. that the Board 10 vest
ed with authority to act In matters relat-.
ing 10 public interest In 80 saying, It Is
simply announcing the definition Of an
office. Indeed, the selection and appoint.
ment of State officers, and The filling Of
vacancies, arc among tho highest poWers
and most delicate public trusts that can
be delegated, for upon their proper exer-
else depends the whole action Of the gov
eminent" -.-0r'rH 8.-Er.'
The public functions which the Lsgisla.
ture oil our State have cOnfdcd to their
"Board oil Appointment" are, as have
already said, more extensive than those
which were attempted TO be delegated 10
William Kennon and his two associates
by the Ohio acts. s,.... ,-.---.
In the North Carolina case to which |
have referred, and In which the Legisls-
tme Attempted TO confer limited power
Of appointment on two existing officers OF
the Stste,. the couSt held that this was in.
vestiDg those officers with different OF.
fee from that which they before held, and
that the Legislature could not do this un.
der the Constitution OF the State.
In the case Of tho Commonwealth Y.
Gushing, 90 Mass. R 500, 1t became ma
terial, In criminal proceeding for assault
ing 10 police officer while he was In the
lawful execution Of his office, TO deter
mine whether E. 3. Place, the person
who had been assaulted, was, under the
statutes Of the State, q lawfully appointed
police officer. The selectmen, who by
law had the power of appointment, had
voted that "E. B. Place bs appointed on
police duty" and it was argued that he
had not been appointed 10 the office in
the language Of the statute nor substan-
TALLY in conformity with it, and that an
appointment TO duty Is not an appoint
ment TO office. Butthe Supreme Court OF
the State decided that the appointment OF
Place on police duty constituted him q
police officer; and this decision was made
against the accused In a criminal prose-
cution, where the utmost strictness Of con.
struction prevails in favor oil the deEen-
dant. Il
In Baeon'S Abrii9cnlent, a work which
has always been celebrated for the accu-
racy and completeness of its definitions,
1t is said, under the title "Onces and OH.
cers," letter A: "Offlcers are distinguished
into those which are of a public, and those
which are OF q private nature; and herein
II 10 said, that every man is public off,
Ger who hath any duty concerning the
public and he Is not the less q public
officer, where his authority Is confined to
narrow limits, because II Is the duty Of
his Office and the nature OF that duty
which makes him public officer, and
not the extent Of his authority"
The term Office is explained by Chief
Justice Marshall in the case Of United
States o. Maurice, 3 Brockenbrough's r.
102-10S, where the question arose whether
tan agent Of Notifications" was an officer
Of the United States. IAN Office" said
the Chief Justice, us defined TO be a pub.
lie charge or employment, and no who
performs the duties OF the office, Is an
officer. II employed on the part Of the
United States, he Is an officer OF the
United States. Although an office is an
employment, II does not follow that every |
employment Is an office. A man may
certainly be employed under q contract,
express or implied, to do an act or per-
form q service, without becoming an OH. |
Ger. But il duty be continuing one
which is defined by rules prescribed by
the government, and not by CONTRACT
which an individual Is appointed by gov
eminent to perform, who enters on the
duties appertsiniRg 10 his station without
any contract defining them-if those du-
ties continue though the person be chang.
edit scenes very difficult to distinguish
such q charge or employment from an
office, or the person who performs the du. |
ties from an officer"
According 10 these authorities, II Is the |
thing, not the name-the substance, not
the shadow-which determines what con.
stitutes an office. II by legislative enact.
ments, individuals are. by name and with.
out any official title whatever, constituted
In effect Board oil Public Works and
Public Appointments, with continuous
powers and duties as such, this Is a |
legislative appointment OF them to public |
office. II on the other hand, existing |
officers, by their proper official |
titles, are constituted such q Board,
It Is a legislative appointment Of such |
officer TO an additional Office. The per-
son TO whom public powers and duties, Of
continuous nature, are assigned pur-
suant to law, by Rhomsoever he may be
elected or additional, Is not the less an
officer because the laws style him an |
agent, OF gives him no official title. Even |
an act which extends the term of an ex.
isting officer is q legislative appointment,
for II designRtes the person who Is TO fill |
the Office for the appointed time. Tie
Peeph Y. BuR4G New York R &c 10 o.
And yet the opposing counsel complain
that they have not been able to make US |
comprehend the distinction between con.
ierring an office by an official title, leo |
nominee and comforting the powers and
prescribing the duties without any official
name. 1t Is true, l do not comprehend |
this distinction, tOrit does not exist in the |
law. ,....
The counsel on the other side have pro.
duced superabundSnce Of authority to |
show that the court Will not pronounce q
Legislative act void upon the ground that
tits repugnant to the Constitution, unleat