The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-08-27

set limits TO It's authority, aud where It's
discretion alone will measure the eI'
tent OF its interference. The rule oI
law upon the subject appears to be that,
except where the Constitution has i'm
posed limits upon the legislative power,
it must be considered as practically ab.
solute, whether it operates according
to natural justice or not, in any psrti-
culsr case. The courts are not the
Egusrdisns OF the people OF the State,
except as those rights are secured by
some constitutional provision which
comes within the judicial cognizance.
The protection against unwise or OPP
pressive legislation, within constitution.
al bounds, is by an appeal to the justice
and patriotism OF the Representatives OF
the people. If this fail, the people in
their sovereign capacity can correct the
evil but courts cannot assume their
rights. Cooley's Constitutional Limi-
tstion, PIP. l67-l6S."
In discussing the second brarch OF
the subject, the appointing powers,
Judge SCOll SSlu
1T is claimed that the General As
sembly, in the act in question, by su-
thorizing the judges of the Superior
Court to appoint trustees OF the contem-
plated railway, have exercised an ap-
pointing power, which is forbidden by
the twen;y-seyenth section of article
second Of the Constitution. The argu-
ment is, that the trustees, whom the act
authorizes the court to appoint, are
public officers, that their appointment is
not the exercise Of judicial function,
or OF any power thst can be conferred
on the judges OF the court as such; and
that the conferring OF this power o.
appointment is the creation OF q new
and independent office, which cannot be
filled by the appointment OF the Legis-
lature, whether the appointee be deslg-
mated by name or by reference TO
another office which he holds. In the
same connection it is claimed that this
power OF appointments conferred on the
judges OF the Superior Court in violation
OF article first, section fourteen OF the
Constitution, which prohibits the judges
OF the Supreme Court, and the Court OF
Common Pleas, from holding any other
Office OF profit or trust under the au.
thority Of this State or of the United
States. And it is further argued that
the act Is IN conflict with article second,
section twenty, OF the Constitution, be-
cause it does not fix the term Ct Office
and compensation Of the trustees. Are
any OF their positions clearly well
taken &? We shall first inquire whether
the power Of appointment conferred by
this act on the judges OF the Superior
Court involves the exercise OF an ap-
pointing power by the General Assem-
bly,. Were the judges thereby appoint
ed to public office? In supper; Of the
affirmative OF this question we are re-
ferred to the decision OF this court in
the case OF the State on the relation Of
the Attorney General rs Kennon Ct al
7th Ohio State reports, p. 46. In that
case it was held that the secton and
designation by name OF the defendants,
by the General Assembly, to exercise
continuously and as part OF the regular
and permanent administration OF the
government, important public powers,
trusts and duties is an appointment to
Office. But we think the present case
cannot be brought within the principle
OF that decision. In this case there is
no designation of individuals by name
to exercise any public functions what
soever. 1t is clearly the case Of an
additional power or duty annexed to ex-
isting Offices, and not the creation OF n
new Office. Upon the filing OF peti-
ton by the city solicitor in the Supe-
rior Court, praying for the appointment
OF trustees, it is made the duty OF the
judges OF that court to make such ap-
pointment, and TO enter the same on
the minutes OF their court. The power
OF appointment and Of subsequent re-
moval for unfaithlulness can be exsr-
cised only by the court as such, and all
power OF control in the premises. on
the part Of the judges, ceases with the
termination OF their Judicial Office. 1t
is true the act confers new power on
the judges Of the Superior Court, but as
was said by Judge Swan, in his con-
curing opinion in the case referred to,
IF adding TO the duties or powers Of ex-
listing Office is an exercise OF the ap-
pointing power, then any new duty re-
quired or power conferred npon any
State, county or township officer, must
be deemed the exercise by the General
Assembly ofthe appointing power and
forbidden by the Constitution.
This opinion OF Judge Swan is the
same quoted by Judge Hammond in the
case Of Bridges Us. Shellcross.
We ask our readers to compare this
opinion Of the Supreme Court Of Ohio,
with that OF the State OF West Virginia,
published in our issue Of the Goth Of
July, and see how remarkably they
agree in their propositions Of law and
their deductions therefrom. Yet one
is composed entirely Of Democrats In
the State of West Virginia and the 9th.
CT DI TdllChlb lu kue tcldLc VI OulO. Anu
another important fact TO be taken into
consideration is, that these opinions
were rendered entirely independent and
without consultation Of one court with
the other.
Again, We wish our readers 10 consii-
er how it is that the propositions Of law
declared by the Supreme Court Of Ohio
in the case just quoted are good law in
Ohio, yet become such vile Democratic
psrtisanism when declared by the Su
preme Court Of Appeals Of West Vir.
ginis, if we are to believe radical news
pspers. The Supreme Court Of Ohio
certainly cannot be charged with being
tainted With Democratic psrtisaDism,
and its opinion in this case is strong
argument in favor OF the impartial and
unbiased decision rendered by the court
of West VIRGINIA in the case of Pridges