The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-08-27
The RaticaI Press and the Coart OF
Appeals.
From the Orthopolltan.

| illustrates the lllloeral partisan charac-
ter OF the Radical pres. of this State
than their comments upon the decision
rendered by the Court OF Appeals in the
case OF Bridges Us. Shallcross. From
the moment OF the annunciation OF the
decision from the bench, to the present
time the members of the court have been
characterized with all the abuse, the par
tisan malignity of the writers could
command. Although the court gave
an elaborate opinion, stating fully and
fairly the propositions Of law, sud the
reasons and authorities for their con-
clusiors, we do not believe that single
Radical paper in the State has had
the manliness and fairness to publish
it yet they have al more or less in
dulged in hippant criticism OF it.
No one Of them has dared to take up
the several propositions OF law and at
tempt to controyert them by argument
or reference to authorities. They have
from first to last ignored argument and
appeals to the reasoning faculties OF
their readers, and dealt in slang and
abuse. But this is just what we might
expect from men who, when in power,
could brook no opposition, or discussion
evea, Of their oppressive and tyrannicsl
laws. When the Legislature and the
Court of Appeals were composed Of
Radicals, It was then the cardinal doc
trine OF the Radical press that they
could do no wrong, and all who. for q
moment, presumed to doubt,their inial-
libility, were denounced as disloyal and
revolutionary.
Then they most deyoutly pro!essed to
believe in the doctrine Of
1.-THE right divine OF kings to9govern
wrong"
And they faithfully practiced it.
To show the utter recklessness and
want of truth in the charges Of parti-
sanSm in the decisions OF the court in
the Penitentiary case, we wish to call
the attention Of our readers TO decis-
ion recently rendered in the Supreme
Court Of Ohio in the case Of Walker rs
The City OF Cincinnati, et a., in which
similar points were involved, to those
decided by the Court OF Appeals OF
West Virginia in the case of Bridges rs.
Shallcross, but not referred to by the
counsel or court IN the consideration OF
that case, and reported in the Dist vol.
Of Ohio State Reports, page IA, and Sth
vol. American Reports, page "A, Just
published.
The remarkable similarity Of the
propositions of law involved and the
reasoning of the courts in their opin-
ions will strike the most casual reader.
In 1869 the Legislature OF Ohio pass
ed an act authorizing cities having q
certain amount of population, to con-
struct railroads for certain purposes,
through the agency Of board Of trus-
tees, consisting Of five persons, to be ap-
pointed by the Superior Court OF such
city. In pursuance OF the authority Of
this act, the city council OF Cincinnati
proposed to construct THE Cincinnati
Southern Railway" between that city
and Chattanooga. The plaintiff, Walker,
was opposed to the construction OF the
road, and sued out an Injunction TO pre-
vent it, upon the ground that it was un-
constitutional.
The following is an extract from the
syllabus:
"The Legislature of Ohio authorized
the judges OF the Superior Court TO ap-
point trustees Of contemplated rail-
way. Held, (D that this was not an
exercise OF the appointing power, for
bidden 10 the Legislature by article
second, section 81, of the State Consti-
tuition, such trustees not being public
officers, in the constitutional sense and
their appointment by the court being a
legitimate function; (2) that the act
was not in violation OF article four, sec.
ton II, OF the State Constitution, pro-
hibiting the judges from holding any
other Office, such power OF appointment
being only an additional power or duty
annexed to an existing Office and not a
new office; and (3) the act was not in
violation OF article second, section 20, OF
the State Constitution, in not fixing the
term OF Office and compensation Of the
trustees, such trustees not being officers
in the sense Of the Constitution
Chief Justice Scott delivered the opin-
ion of the court, and in his opening re-
marks said
1--WE must bear in mind that the
question is one OF legislative power, and
not OF the wisdom, or even Of the justice
or the manner in which that power, il
it exists, has been exercised. Had we
Jurisdiction to pass upon the latter
question, we should probably have no
hesitation in declaring the act under re-
view to be an abuse Of the taxing pow
er. Courts cannot, in our judgment,
nullify an act OF the Legislature on the
vague ground that they think it oppo-
sed to a general latent spirit, supposed
to pervade or underlie the Constitution,
but which neither it's terms nor its
implications clearly disclose in any Of
its parts. To do so would be to ar
rogate the power OF making the Con-
stitution what the court may think it
ought to be, instead OF simply declaring
what it is. The exercise Of such
power would make the court sovereign
over both the Constitution and the peo-
pie, and convert the government into
judicial despotism. While we declare
that legislative power can only he ex-
eCcised within the limits prescribed by
the Constitution, we are equally bound
to keep within the sphere allotted to
Us by the same instrument. On this
subject We cannot do better than to
adopt what is well ssid by Judge Coo
ley in his treatise on Constitutional
Limitation, PIP. l2S, 1919"
Being the same passages and author
ties quoted aud relied upon by the
Cor--t of Lnnss1z NJ Hes. Virgir;a