The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-05-21
The Appointing Power.

J.W.WorFINDIS, ESQ, Editor Democrat
addressed communication to the
Wheeling REGISTER on the 4th of Jam
usry last, giving what l believed the
meaning Of the two eighth sections OF
articles four and seven Of the Constitu-
ton; that communication, written hast
iy, will be found, take it. mainly cor
rect.
II contended that the Legislature,
under the Sth section OF the 4th article
Of the Constitution mig ght create q
Board OF Public Works, and provide
for filling the office by an election By the
psopls; and it further maintained in
General terms that authority could be
given by law to the Board of Public
Works to appoint the Directors OF the
Hospital for the Insane and the Peni-
tertiary. If this is going too far, there
is no question as to the power OF the
Legislatnre to direct their election BY
the people.
The two eighth sections Of articles 4
and 7 OF the Constitution point
out two modes of filing offices. One is
by elections by the people, the other by
appointment, either by the Governor,
with or without the consent OF the
Senate, or by some designated agent,
other than the Legislature.
The Sth section of the 7th article
oay gives the Governor authority with
the consent Of the Senate, to ill office,
where it is not otherwise provided for
in the Constitution and BY the ia,o.
The Legislature, it is to be borne in
mind, is expressly prohibited by the
Constitution from appointing any officer
established by the Constitution or Greats
ed by law. 1t cannot appoint the officers
OF the Board OF Public Works, the
Directors and Superintendent OF the
Hospital for the Insane and Penitent!>
ary. direetly, and what it cannot do
directly it cannot do indirectly. Had
the Legislature created the office o.
Board of Public Works, and provided
in the law las indicated in my Jsnu-
ary letter to the REGlsrER) for tIeettng
the officers or commissioners BY ne
y.opls, there could have been no qnes-
tom "a to the coustitutionality OF the
law. But the error the Legislature
committed was in appointing the officers
of the Board OF Public Works. 1t had
no bright to do 50, to say nothing OF the
eligibility OF the persons it appointed. =.
The two eighth sections OF articles 4
and ! are perfectly in accord and har-
mouious. They read: :,
ARTICLE 4, section S.-The Leglsia-
ture, in eases mol proridsd for in the Con-
stitution. shall prescribe by general laws
the terms OF office, the powers, duties
and com pensatiou OF all public officers
and agents, and the manner in which,
thew ehall be elected, appointed and
removed"
ARTICLE Z, section S.-The Governor
shall nominate, aud by and with tue
advice and consent of the Senate. "a
majority OF all the Senators elected con.
curing by yeas and nays) appoint all
ofieers whose offices are established oy
his Constitution, or shall be created
OV law, Anu "uOoc oPpS'uth
election is not otherwise provided lor
and no sneA officer shaH be eleetsdor Gp-
ysiated by the LegslatSre.' =.
The Sth section the 4th article, 1t
will be seen, gives authority IN cases
no, prorided for in the Constitution to
create offices and provide for filing
them by elections By the people or 6y
appointment -,
The Sth section OF the seventh article
directs how officers whose election or
apeo; ntmeut is not otherwise provided
for, may be appointed; but expressly
provides that no such officer shall be ap'
poi,ke8 or skaed By the Legislature.
A law, or appointment TO office, made
10 open violation of the Constitution. it
void. The law establishing the present
Board OF Public Works, is. in my op,n'
ion. unconstitutional, and the Board o
OF Public Works, as now constituted
being void, all its acts are void.
WV. E. ARNoLD.