The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-21

the Attorney General, reside 81 INT
seat of government during their termI
OF office, and keep there the public
records, boo ks and papers pertaining t.
their respective offices, and snail per-
form such duties as may be prescribed
by law" The 10th section of article {
OF the constitution reads thus: "Th'
legislature shall not confer upon any
court or Judge the power OF appoint
ment to Office, further than the same II
herein provided for" Article s, sec
ton 81, of the constitution reads thus
"W Whenever the Legislature is express
ly prohibited by this constitution from
doing any particular act, and the same
shall be done in violation Of such pro-
bibiton, it shall be the duty OF the
courts, upon q proper case presented
before them, to declare such act nuil
and void" 1t is maintained by the
counsel OF the complainant that the
said act of the 18th OF January, 1878
in substance and effect simply pre-
scribes additional powers and duties to
be performed by officers already elected
by the people and that it does not
amount to an appointment to an
office r.a ated by law. but that
it only amounts to requiring the officers
OF the executive department By virtue Of
their respective offices to which they
had been elected by the people 10 act as
members of the Board of Public Works;
thai it 10 substance simply annexes ad-
ditional powers and duties TO their re-
spective offices. That it has been a
time honored usage in Virginisand con-
tinuing in West Virginia ever since its
formation to cause certain duties which
might have been assigned to officers
specially appointed or elected for the
purpose to be performed by officers al.
ready appointed for general service and
associated by law in the form OF a
board or a corporation for the supposed
benefit OF the united counsel OF several,
and for the more convenient discharge
OF such duties, and that the acts pre-
scribing this form OF service have never
been questioned as unconstitutional, Z,
either because they violated the provl-
sion in the constitution separating the
three departments OF government, for
bidding the exercise by either OF powers
belonging to the others, or tie exercise
by any person OF the powers Of more
than one OF them at the same time with
the single exception OF permitting JUS
tices to be members OF the legislature
or the provision forbidding certain OF
ficers to perform the duties OF any other
office during their term OF service. 10
the case of Sharp v. Robertson, 5 Grat-
tan SIS, it WAS decided by the Court Of
Appeals OF Virginia that "the act OF
March 3lst, lS4S sess. acts, p. 81 estab ;
fishing a special Court of Appeals, con-
stituted OF Judges Of the Circuit Court,
is constitutional. That per diem COM
pensation to the Judges holding the
special court for the time they get
therein, in addition to their salaries az
Judges of the Circuit Court, is consti-
tutional. And that the special Court
OF Appeals is not a Supreme Court OF
Appeals, but belongs to the class OF
Superior Courts provided for in the Con-
tuition OF Virginia" In that case con-
etitutional objections to the act of the
Virginia legislature not dissimilar in
principle and importance to the most
grave made in this case, were inttroos.
ed before the Court OF Appeals Of Fir'
ginia. Judge Baldwin in delivering
his opinion in the case which seems to
have been corcurred in substantially
by msjority Of the court, says,
on page Gil, "A judicial office imports
the legal capacity and obligation OF the
incumbent to render judicial service
by holding one or more courts OF JUS
tice; and it is true that when the whole
service is extinguished by competent
authority the office itself is thereby
abolished. But the act in question
creates no new judicial offices and sp>
points no additional Judges, but merely
attaches new duties to judicial
Offices already existing, to be performed
by incumbents within the constitutional
power OF the legislature" The judge
further says in same opinion on page
GIG: The question, it will be observ-
ed, is not what power over this subject
has been granted to the legislature by
the constitution, but what power 10
regard to it is exhibited to thatidepart-
ment by express terms or strong and
clear i'm IMPLICATION" See also upon this
subject the very strong and pointed
case of Epbriam Clslos u.s. Thomas
Belcher, 80 Pick. R. 50S. 1t would
occupy too much space for US to un-
dertake to give full statements Of the
case last cited. We can only refer
to them, aud those who desire to do so,
can consult the reports in which they
are contained. We think much valua-
bic light is thrown upon this subject
bv recurring to the constitutions OF
Virginia OF l776, 1880 and 1851, and OF
the former constitution OF this State,
and the practical construction placed
upon provisions in these constitutions.
net dissimilar to those in the present
constitution now under consideration,
especially the 4th section OF article 7
before recited. The counsel for the
complainant at the argument Of this
cause furnished us with references TO
those constitutions and various acts
Of legislatures OF Virginia and
West Virginia applicable to h
subject under consideration and
as we consider them as relevant and ap-
propriste we cite them briefly az given.
The third section Of the Constitution OF
Virginia OF l776 in lst r. Code OF 1919
is almost IN the exact words Of the 5tb
article of the present Constitution OF
this State. The section forbids the ex-
ercise by other departments OF the
powers properly belonging to the others
or the exercise by one person OF the
powers OF more than one department at
the same time, except that the Justices