The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-06-28
Qhe1ntelliqetrcer:
Supreme Court Of Appeals.
WILLIAM l.. BRIDGES,
rS.
THOMAS r. SIIALLCRoSS.
Upon a MandGmUS NISi.
ARGUMENT OF COL. N. FITzHUoH.

ARGUMENT OF COL. N. FITLuUul.
The record presents this case: That
The complainant, Bridges, was appointed
superintendent Of the Penitentiary by the
Board OF Public Works on the 10Th day Of
April, 1873, pursuant to the provisions Of
al act Of the Legislature passed on the Let
lay Of April, 1878; that he executed his
official bond, and took the oath prescribed
by law; that on the lst Of May, 1878, he
demanded possession Of tho office from
Shallcross, the incumbent, who refused to
admit him. On the other hand ShallCross,
the defendant, says that he refused 10 ad.
init Bridges because the act Of the Legis-
lature creating the Board Of Public
Works, and the act Comforting on that
Board the power to make that appoint
ment are both repugnant TO the Constltu'
liun Of the State and are void. The Con-
sltutlonality Of these two acts is the ques.
ton involved in this case; aud II they are
unconstitutional, Bridges has no lawful
right 70 demand the office. The act APP
pointing The Governor, Auditor, Treas.
urcr, State Superintendent Of Schools
and Attorney General on the Board
If Public Works is unconstitutional for
Tue following reasons:
It Is in direct conflict with the 4th sec.
lion Of tue 7th article Of the Constitution,
which dGclaora that neither the Govern.
ar, State superintendent Of FREQ Schools,
Auditor, Treasurer, nor Attorney Cen
rTal shall holt any other office during the
term Of his service" II then, the Board
Of Public Works Is an Office within the
meaning the Constitution, the act which
appoints the Governor to ill 1t, IL void.
contend that the Board OF Public
Works is an office,
!. Because It's duties and powers are
such as belongs to an Office. Those du-
Its aud powers are chiefly confined to
The control and management Of the State
interest in'Nny Of tho works oil internal
improvements, the regulation Of tolls, &c.
:. Because II falls within the definition
ol an Office as given by thecourts, An
Oillce, says Judge Pratt, 30 Johns, r, 403,
Is an employment on behalf Of the gov.
eminent, In any station, or public trust,
NOT merely transient or incidental"
5. 1t Is recognized as an office where
ever II is referred to In the statute law OF
The State.
i. 1t IS made an office by the terms OF
lis creation. tits SAID tO"be and con-
iinue"-implyipg duration.-And 1t Is
created q Corporation" which Is the
general, If NOT universal condition Of all
!ublic Oflces-they are all corporations.
But II the Board Of Public Works Is
not IN office itself, while restricted to the
duties appropriate TO that Board, yet the
new duties assigned to 1t by the act Of the
lst Of April, 1878, THAT OF making the ap.
pOintment for the Peniteniiary) as 10
those new powers and duties, make It an
office.
This has been repeatedly decided: The
case Of the State q. kennOn, z Ohio X
So, was OF this character, The Legisla-
lure Of Ohio passed an act directing that
Board, TO be called tho State House
Commissioners, "shUuld be appointed by
William Kennon, Asbael Medbery and
William B. Caldwell" whose duty 1t was
to superintend tho building Of the State
House, then In the course OF construction.
Kennon and Lis associates had no other
power or duties assigned 10 them except
Z ppOint the Board Of State House Com.
ssiOnerS. The question arose in that
Csse-indeed II was the prominent or only
Observation-Disclosures Kennon and his ass0,
ctates were officers; and whether the
duties they were required 10 perform
created an office. Tho court said "lt d
clear TO our minds that Il tho statute b
held valid these defendants (Kenpon and
Olhers) are Ofilcers.n In case decided
in North Carolina, 200, N. @ 6T) The
court said tho duty OF appointing TO ar
Office, constitutes Of itstlf dplJlIe cfeS."
The act creating the Board OF Public
Works or filling the Board with the Gov
eFnoF, Auditor, &c. .isunooBstutienaifoI
smother reason. 1t Is in conflict with the
last clause Of tho Sth section Of the 7th ar
licIe Of the Constitution, which prohibits
the appointment Of any such officers by
the Legislature. The Legislature had thu
unquesioned right TO create tic Office, Of
niI had been already created 10 retain II
but as soon ss Il attempted to oil the Of.