The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-06-26
continued from FYrE P1oe,l

tions Of all officers and agents, and the
manner in which they shall be elected,
appoiuted and removed" That the
proper Interpretation of this gram. oil
mower is that where the constitution
tails to provide for the term OF dura"
| ton Of office the legislature shall DO It,
band where it fails to provide VINO OF
what tribunal shall elect or appoint an
officer, the legislature shall make pro-
vision for it, and, finally, where 1t fails
to proyide who or what tribunal shall
remove an officer the legislature shall
designate the officer or tribunal 10 MAKE
the removal.
5 That the word manner" as used
in this grant of power to the legisia-
ture. does not mean az commended Tor,
that the legislature snail prescribe the
manner, mode, or method in which the
Governor shall proceed to make the
sppointment, bat that its true import
and meaning is that the legislature
shall prescribe by general laws VINO
shall make the appointment; ana tha'
this duty thus cast upon the legislature
is mandatory and not simply peFmR's'Ve'
G. That section S OF article 7 OF the
constitution does not confer upon the
Governor, by snd with the advice and
consent OF the Senate, the power to ap-
point officers whose Offices are establish
ed by the constitution or shall be Great
ell by law, land whose appointment or
election is not otherwise provided for
in the constitution. That the power to
provide by law who should elect or
anpoint this identical class OF officers,
having already been conferred upon the
legislature by section s OF article !, 1t
could not have been the intention O
the trainers OF the constitution 10y sec
ton S Of article 7 to confer this same
power OF appointment upon the Govern
or by and with the consent OF the
Senate, except in cases where the
legislature and the constitution both
tailed TO provide by whom the appoint
ment should be made.
!. That section article 1, and sec
ton s OF article I ere not in conflict
with each other, and are not to be so
construed. If it were conceded that
there is an apparent conflict between
them, which there is not, still the rules
of construction applicable in such cases
would easily reconcile the difficulty.
One of these rules is that the whole IS
to be examined with view to arriving
at the true intention OF each part. This
rule requires that effect is TO be gwen.
if possible, to the whole Instrument, and
to every section and clause. II differ
ent portions seem to conflict, the courts
must harmonic them, If practicable,
and lean in favor of a construction
which will render every word operative,
rather than one which will make some
idle add nugatory.
s. That the object and intent o! sec
ton s, article 7 of the constitution is
that where an Office is established 10y
the constitution, or has been or shall be
created by law, and no provision has
heen or shall be made either in the
constitution or by law, for filling it by
an election or appointment, then that
the Governor by and with the advice
and consent OF the Senate shall fill the
office by appointment.
9. That the constitution not having
provided the manner in which any
officer whose office has or shall be Gre
ated by statute, except the State Super~
intendcnt o! Free Schools, whose office
was originally created by statute, shall
be elected or appointed, it is entirely
competent for the legislature TO provide
BY general laws the manner in which
all officers created by it shall lie elected
appointed aud removed, either by giy-
ing the election to the people, IS in the
case OF the school officers, or Ivy giving
the appointment to the Governor, as in
the case ofthe Notaries, Commissioners
Of Deeds and Vaccine Agents, or by
giving tie appointment TO the Board
OF Public Works, az in the case Of the
Superintendent and Directors Of the
Penitentiary and the officers OF the
other public institutions.
10. That to admit the construction OF
section s, OF Article !, of the constitu.
ton contcnded for by the Governor,
that in all cases where the election or
appointment of an officer whose office
is established by the constitution or
created by law, whose election or ap-
pointment is not otherwise provided for
10 the constitution, such officer 10 TO be
appointed by the Governor by or with
thea dviee and consent Of the Senate,
gives to the Governor the appointment,
IN the manner stated, OF all the thous-
ands OF officers already specified and
enumerated. And THAT too upon a
strained and unnatural construction OF
the section, in no way warranted by its
language. And that snch a construc-
ton so dangerous to public morals and
public liberty is not to be given to the
section in the absence OF plain, specific
and unmis.akable language, showing
that such was the intention OF tue
/ trainers Of the constitution.
II. That il Therefore follows as a
legal consequence IL at the complainant,
William i. Bridges, has been duly and
consttutioDally appointed Superinten-
dent ofthe Pententiary at Moundsvllle,
for the term OF two years, commencing
on the first day Of May lsst, and that
peremptory writ of mandamus should
therefore issue.
1t may be proper in conclusion TO re-
fer to the well known and ACKNOWLEDGED
principle Of law that al acts OF the
legislature are primG tacie constitution
al, and that it is only in cases where
assumption OF authority on the part OF
the legislature is manifest and etear, that
the judiciary will interfere and declare
the act void. They will never DO so in
doubtful case.
JAMES II. FERGUSON,
Counsel for he Board OF Public Works.
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