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

3 every body, people and ohcers nav
E been living in perfect ignorance Of tn
A requirements OF these various constitu
3 tions, during all these years, and ths
all these Governors, including the on
! who now raises the question, have con-
stantly violated the contributors the!
were sworn to support. With all du
respect to his Excellency, submit tha
they have been guilty Of no such crim'
and that the act in question is not un'
, constitutional and void as claimed in TIT
. defendants return in this case.
now proceed to the consideration o
the second act mentioned in the return
Section of chapter l63 Of the code
as amended by this act reads as fol.
lows: 1.-THE Board Of Public Works
shall on the 18th day of April, in the
year 1878, and every two years there
after appoint a Superintendent OF the
Penisentiary at Moundsville, whose
term OF service shall begin on The let
day OF May next after his appointment"
&c, and it is claimed by the defendan;
that this act is also unconstitutional and
void, for the reason that the appoint
ment OF a Superintendent Of the Peni-
tentiary belongs to the Governor under
the constitution, and cannot be confer
red upon the Board of Public Works.
X
The constitution has provided for the
manner in which all the State, county
and district offices created or continued
by it, shall be elected or appointed. II
there is a single exception | have not
been able to fOd it. And it is notice
able fact that in no case does it vest the
power OF appointment in the Governor
alone, and that in but one specified case
does it vest the power in him to appoint
with the consent of the Senate, which
is that OF the Secretary OF State.
The constitution, however, expressly
authorizes the legislature to provide for
county superintendent OF schools and
such other school officers as may be
found necessary. [See sec. 3 Article
FL 1t also in sec. s Of Article Z,
recognizes the right OF the legislature
TO create other offices, and in section II
OF the same article it recognizes the
existence OF the officers "of the public
institutions Of the State"
No provision is made, expressly, in
the constitution for filling any OF these
offices, or for the offices of notary pub
lie, commissioner Of deeds, military Of
ficers or any other Office which the leg
islature may create.
Itis contended, however, that while
the constitution has not in any specif-
ed cases, provided for the exercise Of
the appointing power, by the Governor,
it has done 80 In general terms by sec
ton S Of Article 7. There are but two
sections OF the constitution relating to
the matter under consideration, which
are the one above referred to and sec.
ton of Article 4; and in order to q
perfect understanding of their purport
and meaning, l will read them in re-
verse order, and as one section, They
are as follows:
(Sec. s, Art. ~ "The Governor
shall nominate, and by and with the
advise and consent OF the Senate, "a
majority of all the Senators elected
concurring by yeas and nays) appoint
all officers whose offices are established
by this constitution, or shall be created
by law, and whose appointment or elec.
ton is not otherwise provided for; and
no such officers shall be appointed or
elected by the legislature.
(Sec. s, Art. 4 THE legislature IN
cases not provided for in this constitu-
ton, shall prescribe by general laws, the
terms OF Office, powers, duties and
compensation Of all public officers and
agents and the manner in which they
shall be elected, appointed and remov-
ed"
Now if the Governor and those who
think with him be right, there was no
use for this Sth section Of article 4th, at
all. 1t means nothing and sccomplishes
nothing.
To test this let us see what the Gov
ernor says in his message upon the
subject. In commenting upon the
words, whose appointment or election
is not otherwise provided for" he says
that ia to say, whose appointment or
election is not otherwise provided for in
this constitution. This clause cannot
be construed to mean whose appoint
ment or election shall not be otherwise
provided for by law. without doing
violence to the simplest rule OF gram
nautical construction" And in com.
menting upon the came clause OF the
section in another place, he italicises
the word "is," so that putting it all to-
gether the argument is, that whether
the Office TO be filled be one created by
the constitution or one already created
by law. or one which shall thereafter
be created by law, unless the manner Of
filing it is otherwise provided for in the
constitution, it must be filled by appoint.
ment made by the Governor. The
legislature, according TO this argument,
has no power 10 provide who, or what
tribunal shall fill any Office, whether
created by the constitution or by itself.
II this construction of the constitution
be the true one, then l repeat that sec-
ton s of Article 4 is dead letter, 30 far
as the election or appointment to Office
is concerned, because provision is made
by the constitution either specifically
or by section 8 OF Article 7, for filling
every Office created by the constitution,
and which had been or should thereaf-
ter be created by law. But l deny this
construction in toto, and ! deny that
there is any seeming conflict between
these two sections, as contended for by
the Executive, On the contrary / as
sert that the two sections are in perfect
harmony with each other, ana that
taken together there is hot the slight
est difficulty in arriving at their true
meaning. And what is that meaning /?