The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-10

name aud without any official It'll
hatever, constituted ia effect Boar
| OF Public Works and Public Appoint
ments, with continuous powers and du
ties as such, this is q legislative sp
, pointment of them to public Office. I
on the other hand, existing officers, b.
their proper official tiues, ar
constituted such q Board, it j
a legislative appointment Of sacl
officers to an additional Office. Tb
person to whom public powers and du
ties, OF a continuous nature, are assign
ed pursuant to law, by uhomsoever n
may be elected or appointed, is not tn
less an officer because the law styles hlu
an agent, or gives him no official title
Even an act which extends the term o
an existing officer is legislative ap
pointment, for it designates the person
lwho is to fill the Office for the addition
al time. The People y. Bull, rs New
York R. 62 to Ga.
| And the opposing counsel complain
that they have not been able to make
us comprehend the distinction between
conferring an office by an official title
| Geo nomine,) and conferring the powers
and prescribing the duties without any
official name. 1t Is true, do not CON-
prehend this distinction, for it does no!
exist IN law.
The council on the other eide have
produced superabundance OF authority
to show, that the court will not pro-
nouuce q legislative act void upon the
ground that it is repugnant to the cons
stitution, unless satisfied that is so be-
yond reasonable doubt. We do not dis
pute the proposition.
But this is not the only rule to be re-
garded in considering what restrictions
have been imposed on the legislative
power. or in applying constitutional
provisions to a case presented for deci-
zion.
The affirmative provisions, as well as
the prohibitions, OF the constitution, op-
crate as limitations OF legislative power.
This proposition is well stated in the
case OF the People y. Draper, l5 New
York r. 544, to which we have been
referred by the opposing counsel. 1t is
there said in the leading opininion ::
But the affirmative prescriptions, and
the general arrangements OF the consti-
tuition, are far more fruitful OF restraints
upon the Legislature. Every positive
direction contains an implication
against anything contrary to il, or
which would Illustrate or disappoint the
purpose of that provision. The frame
of the government; the grant OF legls-
lative power itself; the organization Of
the executive authority; the erection Of
the principal courts OF justice, create
implied limitations upon the law max
ing authority as strong as though a
negative was expressed in each in
stance" This passage is quoted and
approved, 10 Wise. R. 532.
The Constitution OF this state pres
cribes, (Article VII, Section 5, that
THE chief executive power shall be
vested in The Governor" and this pro-
vision is q restraint npon the legislative
power. They cannot therefore. by in
direction, deprive the Governor Of the
chief executive power, or subject him
in the exercise OF it to the control OF
those who are called 10 the constitution
itself the subordinate officers OF the
Executive Department, ARTICLE VII,
Sections II, lS.) They cannot, without
violating the constitution, make the
chief 10 effect the'subordiuate, nor the
subordinates the chief. But this seems
to have been the substance and purpose
OF the legislation OF last session.
After Chief Justice Marshall, it may
truly be said that James Madison is our
highest authority on constitutional law.
In the debate in the first Congress
which was assembled under the present
constitution OF the United States, when
the question OF the power Of removal
from office was under consideration, be
expressed himself as folIows: 1T is
needless to assign my reasons why /
think the legislature not in possession
OF this power. They are fully explain
ed before. l therefore shall obly say,
that if there is a principle in our con-
stitution-indeed. in any free coastitu-
tion-more sacred than another. il is
that which separates the legislative, ex.
ecutive and judicial powers. II there
ia any point in which the separ alton OF
the legislative and executive powers
ought to be maintained with greater
caution, it is that which relates TO off,
GERS and Offices. The powers relative
TO Offices are partly legislative and part.
~ executive. The legislature creates
the Office, defines the powers, limits its
duration, and annexes q compensation.
This done, the legislative power ceas-
es. They ought TO have nothing to do
with designating the man TO fill the Of
fee. That l conceive to be Of an ex.
ecutive nature. = We ought
always to consider the constitution with
an eye to the principles on which it
vas tounded."S
AS an instance OF an affirmative pro-
vision limiting legislative power, refer
to the ninth section of article seven oil
our constitution, which provides that,
"In case Of a vacancy, during the recess
Of the Senate, in any Office which is not
elective, the Governor shall by appoint.
men,, fill such vacancy until the next
meeting OF the Senate, when he shall
make a nomination for such Office, and
the person so nominated, when confirm.
ed by the Senate, (a majority Of all the
ss,e,o,a also,s1 onsurx;no by aaa q ~
nays shall hold his Office during the
remainder OF the term and until his
successor shall be appointed and qusf-
fed"
The Office OF Directors OF the West
Virginia Hospital for the Inssue is rot
al elective one, yet the legislature in
utter forgstfulness Of this section OF the
constitution, have provided in the set
OF March 23th, 1873, that their Board