The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-04-03
THE APPOINTING POWER.
Does the Constitution Vost it in
Governor or the Legislature?
Gov. Jacobs Veto Of the Dill to
Take From Him the Appoint"
meut OF Directors for the
Hospital for the insane
The Whole Question Of the APPOin-
ing Power Discussed
An UnauswOrable Argument.
Executive DEPARTMENT,
CHARLESTON, March %, 1879

Gentlemen Of The Scna!e' 'as .
respectfully return herewith, withou
INV approval, u bill which originated Ii
Ihy Senate entitled IAN act amending ant
re enacting sections three, fourteen ant
fifteen OF chapter flfty.eight Of the Cod
concerning the West Virginia HoSplta
for the Insane" for the following reasons
In the first section Of this bill 1t Is pro.
yded, "That the third section Of chapter
hNy.eight Of the Code Of West Virglhia
as amended by an act entitled AN oct 7
amend and re- enact the third andseveutl
sections Of chapter fifty.eight Of the Cod
OF West Virginia concerning the Wesl
Virginia Hospital Tor the Insane" passed
February "a, 1871, shall be and the SAM
is hereby amended and re.enacted SO as t
read as follows: $50.
"9, The board Of directors shall be
composed OF nine members, whose term
Of Office shall DO for one year, commenc.
ing on the first day Of April. Tho said
directors shall be appointed by the Board
Of Public Works, who shall fill all Vacan'
cies that may occur; and, unless to fill a
Vacancy, the appointment shall be annu-
allv on The fourth day OF March, or as
soon thereafter as practicable. The said
board shall be removable at tne pleasure
of the Board of Public Works. Notm
Than three directors shall be selected from
any one county, andr unless otherwise
provided by law, any three Of said dtrec-
Tors shall constitute quorum for the
transaction OF such specific business as
NAV be designated and authorized by a
full board" .srg -
The section Of the act Of February "a
1871, which is now in force, and which Is
intended to BIO amended and re.Cnacted
by this bill, reads as follows:
1.-THE board shall he composed Of nine
members, whose term Of office shall be for
one wear, commencing on the first day OF
April, Tho said, directors shall be ap-
uointed and commissioned by tho Cover
nor, and removable at his pleasure, and
unless TO fill a vacancy, the appoint ment
shall be made annually Gfer tho tonrth
Jay OF March and before the first day o.
April. Not more than two OF the direc-
tors shall DO selected from the county ol
Lewis, and not more than one OF the 9TH
ers from any other county" ..' -
The first amendment proposed by the
hill Is. therefore, to provide that the direc.
tors OF the Hospital Tor the Insane shall
hereafter be appointed by the Board OF
Public Works, instead OF tho Governor.
1t Is hardly necessary to use argument to
show that the directors Of tho largest and
most important institution of the State,
who manage and control the expenditure
of not less than sixty thousand dollars oil
the public money annually, are officers IN
the meaning OF the tenn used in the Con.
stitulion. tpresume that this proposition
will not be denied. II these directors are
officers, and If the Constitution has de-
fined and fixed the power OF appointment
TO office in any department OF the govern
ment, then the power to appoint TO office
cannot be transferred by legislative act to
any other department or officer.
It Is tho unQuestiOnCd law OF tho coun'
try, thatwhile Congress can only exercise
those legislative powers delegated to It by
the Constitution Of the United States, that
on the other hand, the legislature of
State may exercise all legislative powers
not prohibited by tho Constitution. u
there are no restrictions and p0SitiUe pr0UtS
ions in our Constitution with reference t
the mower Of appointment 10 office, theI
il is clear that the legislature may eithe
exercise the appointing power Itself, O.
authorize any board, or officer to appoin
that In It's discretion It may deem proper
Are there any restrictions, any positive
provisions In our Constitution with refer
cnce TO the power Of appointment
The iortieth section of article six pro
yides that "the legislature shall not contel
upon any court, or Judge, tho power o.
appointment TO office, further than 10 here
in provided for" The power OF appoint
ment Is therefore denied in express lermt
to the judicial department Of the govern
Thelas clause Of section eight, article
seven Of the constitution, referring to al
officers whose offices arc established By
this constitution, or shOll be created BY
law" declares that mo such officer shall
be appointed or elected by tho Legisia'
ture." Therefore the power Of appoint;
nent Is denied to the Legislative Depart
ment, There are but three department.
OF the State government, the legislative
judicial and executive, and If the appoint
ing power is denied to the Legislative
and judicial departments, 1t can only re-
side 10 the executive department. 30 taI
we have solid foundation. The conVen'
ton that framed tho Constitution; no
content with giving the power oil appoint
ment to the Governor, as l will presently
show, thus prohibited this power to Thu
other departments OF the government
with such precision and clCarness, tina
there would not seem to be room left To-
nny misconstruction Of that instrument
on this point. The Constitution declare!
that Ithe ExecutiveD Department shall con
sist OF q Governor, Secretary Of STATE
State Superintendent Of Free Schools
Auditor, Treasurer and Acknowledgement.
will not stop to discuss the PROPOSE
ton that the Executive powers are nc
equally distributed among the officer
above named, for the Constitution itse
declares that "the chief executive powe
shall BIO vested In the Governor" Is tn
power TO appoint one oil 1.-THE chief exec
utive" powers, or Is 1t oil such subordinat
character that 1t may be vested in som
Of "the subordinate officers OF tho execu
tive departmcntlV Sovereign power !
vested in tho people, and the highest OK
ercise Of this power by the people Is Il
the choice OF their officers by election
When the mode OF selection Of officers
changed from election to appointmen
does that fact SO dwarf the dignity an
Importance OF tho appointment rs I
bring 1t within the range OF tho subordI
nate powers Of 1.-THE subordinate officer
Of heexecutiVe Department."
The almost uniform practice in thi
State, and In other States, as well as |
the general government, affords an answe
In the fact that the, appointing power, ha
generally been conferred on the chief ex
eCutivc officer. And the true way to in
terpret our Constitution and laws, Is I
examine them in the light Of history
tue terms and phrases used in then
II II.