The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-05-05
0hAQnteLL1qenGEr.
The Controversy over the Poniten-
IiRTY,

The Controversy over the. Penttens
uRrY.
The Modoc war at MoundSVille was
short, sharp, but not bloody. Tho cam.
paign Is over. Active operations have
ceased. There Is pause. The contend
ing forces have come to an understanding
tha. nobody shall bo hurt. There has
been q sort Of peace conferences and
though the peace pipe has not actually
been smoked nor the Ratchet buried, It Is
agreed that the weapons oi war shall be
stacked and no more scalps taken for the
present. In language less aboriginal, both
parties have employed counsel and con-
cluded 10 let the courts determine which
has the law on lis side. The case in.
wolves, Of course, the authority oI the So
called (bogus) Board Of Public Works to
appoint directory and superintendent Of
The Penilentiary. This involves the le-
yslity OF that hypothetical body calling
Itself the Board Of Public Works. That
involves the power Of the Legislature to
create such board out Of State officers
who are expressly inhibited by the Con.
slilutlon from holding any office but those
to which they were elected; and, In gen.
cral, the power Of the Legislature to as.
sumo and confer on bodies Of its creation
the executive junction Of appointment
conferred by the State Constitution on
the Governor and expressly forbidden to
the Legislature. The case appears to US
pretty clear on Its merits, and we under.
stand, both Gov. Jacob and his friends
are willing 10 have the earliest practical
Judicial solution Of the question.
While opposing counsel have agreed
that case shall be put into Court as soon
US practicable, they have not yet arranged
details or determined exactly what pro-
cesscs will be employed. 1t Is thought,
however, that both writs available in such
Il casO-guO WdTGnto and mandamRS-I
will be applied for, one 10 the Circuit
Court of either Marshall or Ohio, the
other directly to the Supreme Court
There Is o claim, we understand, on the
part Of some that proceedings must be in.
itlated by the Attorney General, at the
scat Of Government; but 1t seems TO
US the Attorney General Is embarrassed
by ia divided allegiance" He is mem.
Der Of the pretended Board Of Public
Works, which takes the Initiative in the
proposed suit. Il IS claimed that tho
Board in thls matter is. the representative
of tho State authority, and that as the
law officer Of the State the Attorney
General must prosecute this suit. On the
other hand, is claimed that the Cover
nor represents the State authority and
that It is the duty Of the Attorney GeDet.
al to defend his exercise Of that authority
III this case. Again, 1t is claimed that
under that clause of the constitution
which forbIds tho ssate officers from
holding any other Office, the Attorney
General vacated his office by accepting
membership ol tho so called Board Of
Public Works, and that there is no Attor.
ney General. About the best thing Mr..
Matthews could do under such clrcum.
stances would be to keep out of the fight
further than ho Is involved as member
Of the Board Of Public Works.
To accommodate both parties who de.
sire to get the case before the Supreme
Court at its June term in this city, Judge
MELVIN has consented to hold special
term in Marshall or Ohio, as may be
agreed on, to give tho application for a
writ Of quo tOardntO hearing. This
hearing, however, is 10 be purely pro
forma. His Honor will not hear argu.
ment, but will only entertain the appllca,
ton so far as 10 enable tho parties TO com.
ply with the technicality which requires
the case upon quo wdrrdnt0 to go
through the lower Court,