The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-10
tconuhued nom Flint fasel

nrohibit names and not .thingsf That
q very important act, big with great
and ruinous mischief. which is express
" forbidden BY words most appropriate
for it's description, may be performed by
the substitution OF a name2 That the
constitution in one of more important
provisions may be openly evaded by
giving q new name to an Old thing
We cannot think &c"
Whatever is prohibited by law to be
done directly cannot legally be effected
by an indirect and circuitous contrlv.
ance." (Broom's legal Maxims, Edit. OF
1868. o. 263.) "Whatever is done in
fraud of q law. is done in violation OF
it." s Peters 50; 2 Wheat l53. THAT
the transaction assumed this form,
there is no doubt; but this does not re-
lieye us from the necessity OF ipquir-
ing what it was in substance. Con.ti-
tutional provisions would be Of little
value il they could be evaded by .
mere change of forms. ="
We must give such . construc-
ton to the constitution as will preserve
it's great leading objects intact" 10 Ohio
State R. &c.
"What cannot be done directly"
says the Supreme Court OF the United
States in Cummings y. the State OF Mis-"
eouri, 4 Wallace 325, cannot be done
indirectly. The constitution deals with
substance, not shadows. Its inhlbi-
tious sre levelled at the thing, not the
name. If the inhibition can
be evaded by the form Of the enact.
ment, i,s insertion in the fundamental
law was vain and futile thing"
In tine People U. Bange, "a III. lS6, g
Judge having incurred the displessure
of the Legislature, they attempted to
legislate him out CT Office BY changing
the circuit. But the court said: mo
attempt, by form OF words or mode OF
expression, to abolish the old 23d Cir
cult, and creste another OF the same
number, or by giving it any other num-
Der or any other name, can change the
thing; and it is by the substance and
essence of the law that it must be ad-
Judged" And as the substance and
essence OF the Act in question was to
effect an unconstitutional purpose by
indirect means, the court adjudged it to
be void.
The case OF the State U. Kennon, I
Ohio State R. was decided upon the
principle which l have been endeavor-
ing to elucidate. that in comparing the
act of the Legislature with the consti-
tutiop, the substance OF the thing, and
not the form or name, is 10 be regarded.
In that Gaze ii was said by the Court !:
(page 557-S. Of the volume.) ut is true,
The General Assembly seems TO have
carefully AVOIDED giving to the defends
ants any official name or designation
But surely this is immaterisl to the
question. The official or unofficial
character OF the defendants is to be de-
termined, not by the name, nor by the
presence or absence of On official des:g-
nation, but by the nature OF the func-
tons devolved upon them. If the Gen
eral Assembly had in terms enacted
thst a board of commissioners Of the
appointing power, to consis: OF three
members, be and is hereby constituted,
and that William Kennon, Asahel
Medbery end William B. Caldwell, be
and hereby are respectively appointed
to the office OF member OF such board,
and had then proceeded to clothe them
with precisely the same powers and
charge them with the same public
trusts which are committed TO them by
the acts quoted, We presume that no
one would deny that they would be Off
GERS, if the act was one Of constitutional
validity. Certainly, they would then
be called officers and would have an
official name. Yet if we look at the sub.
stance of things, where is the difference
between the actual enactment and the
one suppoeed' There is none what'
ever"
And if our Legislature had enacted {:
i"There shall be a board Of commission.
era to manage and superintend the
| Cumberland Road and the works of in.
ternal improvement owned by the State,
and to make appointments to and re-
move from office, fill vacancies and fix
the compensation of officers. on behalf
| OF the State, which board shall consist
O. FIVE membe and be called the Board
OF Public Works aud Appointments
and that the Auditor, &c. be aud they
are hereby appointed such Commission.
ers," where, If we look to the substance
of things, and not the mere form OF
words, would be the difference between
the actual enactments OF our Legisla-
ture, and the one supposed?
In the history OF this State, brief as
it has been, we have remarkable il
lustration Of the nature and operation
OF this supposed legislative power OF
annexing to an exciting office the power
OF appointing others to office. We
should not forget the act OF February
%, 1866, by which the Legislature OF
this State annexed such power of ap-
polntment to the office OF the Judge OF
the Ninth Judicial Circuit, the Hon.
Nathaniel HARRISON, nor will the people
of that Circuit. during the present gen.
Grafton at least, forget the nature and
operation Of the power bestowed upon
the Hon. Judge.
The fret section OF Article VII OF
our Constitution, 30 far as it is material
to this case, is az follows "The E1-
ecutive Department shall consist OF a
Governor, Secretary ofState, State Su-
perintendent OF Free Schools, Auditor,
Treasurer, and Attorney General, who
shall be er ohcio, Reporter OF the Court
of Appeals They shall perform such
duties as may be prescribed by lew.
AsI have already ssid. the whole
constitution is to be examined with a
view to arrive at the true intention Of
each part. Different clauses are to be
com pared with each other, for one may