The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-04-03

whose appointment or election Is not
otherwise provided for" gives unlimited
discretion TO the Legislature to confer the
appointing power on any person or board
that It may desire. Can It be possible that
the Convention, in the very section in
which the appointing power Is conferred
upon the Governor, could have intended
to insert clause authorizing the Legisla.
ture to confer this power upon whom 1t
pleased, II this Is the construction to be
but upon this section of the Constitution,
then It is the most striking instance Of
fslO dc ~ that could be found in legal his
tory. 1t equivalent to saying that while
the Constitution confers the appointing
power upon the Governor, ye: 1t Is left 10
the Legislature to say whether or not he
shall exercise 1t, or In other words this
construction makes the Convention say,
TIVE think that the Governor ought TO ex.
ercise the appointing power, but still the
Legislature Is at liberty to do as It pleases
about II" ...-'.
l take 1t that II It had been the inten.
ton OF the Convention to permit the Leg.
stature to exercise It's discretion In regard
to disappointing power, it would have
given expression to such intention In d.
rect terms, and that the Constitution
would hrYe contained no such section Gs
the eighth OF the seventh article. If the
Legislature has unlimited discretion on
| this point then that part Of the Constitu.
ton conIerring the power on the Cover
nor to nominate and by and with the
advice and consent Of the Senate to ap-
point officers, would DO useless and IN.
necessary; for the Legislature could
adopt this plan OF appointment just as
we'll without this provision as with 1t. l
see no difficulty In ascertaining tho mean
| ing Of the clause, whose appointment is
not otherwise provided for" Other parts
ofthe Constitution made special provision
for the appointment and election o
officers; for instance section eight
OF article eight, declares that 'lhe
officers of the supreme court oil Ap-
peals, except tho reporter, shall be ap-
pointed by the court or in vacation Of
the judges thereof" Now the first part
of section eight Of article seven, is very
comprehensive: "The Governor shall
nominate, and by aud with the advice
and consent Of the Senate, Ia majority Of
oil tho Senators elected concurring by
yeas and nsys,) appoint all officers whose
Offices are established by this Constitu-
ton or shall be created by law" If this
proposition had been permitted to stand
alone II might have been construed to
authorize the Governor to appoint all
officers OF State in direct conflict with
some OF the most vital provisions Of that
instrument. To prevent the possibility
of any such misconstruction, and to-
bring this section in harmony with other
parts OF the Constitution it was emipent,
~ proper TO add 10 1t the qualifying
clause "Whose appointment or election
is not otherwise provided for in this Con-
stitution." This clause cannot DO con.
strued to mean whose appointment or
election shall MT 6e otherwise provided
for by law without doing violence to the
simplest rule Of grammatical construction,
- It may be claimed that the Legislature
derives its authority to confer upon the
Board oil Public Works the power TO up
point directors for the Hospital for the lu'
sane from section eight OF article lOur o!
the Constitution, which reads as follows:
1.-THE Legislature, in cases not provided
for in this Constitution, shall prescribe, by
general laws, the terms of office, powers,
duties and compensation Of all public Of
ticers and agents and the manner In which
they shall be elected, appointed and re-
moved"
In the first place, l cannot see how
there Is any conflict between this section
and section eight OF alticle seven, which
grants to the Governor the powerstal ap'
pointment by and with the advice and con.
sent Of the Senate. This section refers 10
express terms to leases not provided for in
this Constitution and as section eight ar.
ticle seven determines t0ll0 shall appoint to
oiilc, the conclusion is inevitable.th that this
section does not and cannot authorize the
Legislature TO determine tch0 shall ap-
point TO Office.
But admitting, for the sake of argument,
that there is apparent conflict between
the two sections, then 1t becomes necessary
to apply the well known rule in the con-
structi0n Of statutes, that Is, so TO contrue
apparently contradictory provisions as 10
render them CONSTANT, ifpOssible. What,
then, is the meaning OF this provision in
the Constitution, authorizing the Legisla'
ture to provide by general laws "the man.
ner in which "all public officers and
agents" "shall be elected, appointed and
removed" Fortunately, this point has
been judicially examined and passed upon.
In the case of the State pS. Kennon ct al,
7 Ohio r. GAG, nearly the identical points
raised by this bill were before the court,
One provision in the Constitution Of Ohio
was, mo appointing power shall BIO eXer.
cised by the General Assembly," another
was, "the directors Of the penitentiary
shall be appointed or elected in such man.
ner as the General Assembly may direct"
The General Assembly of Ohio ap.
pointed three persons who were authoriz'
ed to appoint directors OF the penitentia-
~, claiming their authority to do so I'M
der the clause last quoted, viz: 1.-THE di.
rectors Of the penitentiary shall be up.
pointed or elected In such manner as the
General Assembly may direct" The
court in rendering its decision which de.
clsred the act unconstitutional, said: ITO
make good this claim, 1t must be made TO
appear that the power to direct the man
neF,' the mode, the way In which an act
shall be done, and the power and author.
ity TO do the act itself arc one and the
same thing. But that they arc not iden.
ical, or equivalent to each other, is too
clear for argument, and almost too clear
to admit oflllustration. To prescribe the
manner OF election or appointment to Of.
fee is an ordinary legislative junction.
To make on appointment TO office is an
administrative function. And under a
Constitution In which tho philosophical
theory Of q division Of the powers Of
government into legislative, executive and
Judicial should be exactly carried out In
detail, the power prescribing the manner
OF making appointments TO Office would
fall naturally and properly to the leglsla.
tive department, while the power to make
the appointments would fall as naturally
and nrnnnrlY 10 the eXecntiYn denarf-