The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-04-16
nd the commissioners of the State

House.
The Constitutio nality OF this act wa.
the Question before the Court and the
Court held that the act was uncossti-
tuuonsl
There were two coucurring opinions
delivered. One OF these opinions, and
much the cIearest aud nose concise
was delivered by Judge Swan. He
stated that the question decided is thai
the Legislature could not coufer upon
the defendants the power to make these
appointments, and adds, whether the
General Assembly can annex the pow
er OF appointment OF the directors o.
the Penitentisry aud State House
Commissioners TO the office OF Cover
nor, or 10 sny other existing office OF
board zoe do not decide, simply because
the question is not before US. He
! however, does express su opinion upon
this question, for he SAYS, oft the Gen
eral Assembly annex to an office al
ready existing and filled, additional
powers and duties, upon what gronnd
can Il be clsi ned that this is the exer-
else by the General As mbly Of the sp-
pointing power2 Certsinly upou this
only, that the General Assembly has
enlarged or added to the powers snd
duties Of an existing office. But this Is
really absurd for il adding to the duties
or pc sers OF existing offices, is an eIer
else OF the appointing power, then eve
~ new duty required, or power con-
ferred upon any State, county or town
ship officer must demand the exercise
by the G enersl Assembly OF the appoint.
ing power aud be forbidden by the
Constitution. But these isllscious
positions arise out OF q misrepresenta-
ton Of what is meant by the exercise
OF the appointing power An office,
until filled, is sn impersonsl thlog,
An incorporeal heredItament. Ii Is
filled by the exercise Of the appointing
power, aud when filled the offije and
officer both exist The Office itself may,
by law, be enlarged in It's powers. or
new duties enjoIned without touch
! ing the appointment or tenure OF office
OF the incumbent or his successor. Ii
would, there ore, seem hIguly probable.
although the question is not before US,
that the General Assembly could. with
out drsplaclng or appointing Governor
OF Ohio. annex TO the office OF Governor
the power OF appointing directors oil
the peulientisry, or the duty OF per-
forming sny other legitimate executive
function. II the General Assemb y
conferred upon the incumbent OF The
gubernstorIsl chair official public pow
ers, ~ an lndlvIdu 81 tuat he would
contlnue to exercise the powers thus
conferred, whsther he continued 10 hold
the office of Governor or mol, It would
see u q lite III tnllest to my mind, that
the General Assembly created Al otfic
10 sucn case and exercised the appolat
ing power BIT these questions are not
| before us, except 10 comment upon,
with a view TO aid those who seem to
be unable TO distinguish between al
Office aud an officer. between ifclaI
powers con erred by law upon AMI sn-
nexed to an office and the Individual,
incumbent or Officer" Io. OnIo State
Reports, pages j72 and 573.
So thai this case does not sustain the
views OF the Governor, and il 1t has
any bearing at all upon the Constrtu-
tionallty OF the law IN question. 1t ID 10
favor OF the validity Of that Law.
The Governor, speaking OF the STATE
officers, says I'll they obey the act then
the Constitution ia set ~ naught. snd
remains unexecuted, the solemn obIl-
alton OF these oih :ers to support It is
| broken, and their 9th :es would be va
catel il proceedings we're tskeu TO ei-
iect it," 1t il scarcely necessary TO say
that 10 this opinion the other State
officers do not concur. BuI IN what
position does it p ace II $ Excel eIIency2
He admits that for two years he ha.
| bitually vlol sted the Constitution, and
| the records OF the Board OF Public
Works snow that after the passage o.
| the act which he now deems invalid,
and under that act, he acted ~ q mem
Der oi the b2tr1 OF fu'Ilc works. lie
thus, then admits that his Office ol
Governor must oe declared vacated II
proceedings were Instituted to effect
1t. having then 'or, cited hls otice.
knowing ana concrhi"g thst ne has
'orfeited H. asa conScJ ehuou7 and honest
man, should he wat tor the institution
of legal proceedings before yacatiny IL
Will be recognize the requ'rments Of
the law and conform his conduct there,
to. or will ne await an execution issued
upon a judgement OF amotIoh2
The du,y OF the Executive with re-
gard 10 h,a snbmi,s,on N ards,ecu,ior
oC tho law IL clear and n uouId hav,
heen waIi had nj. attention ha.o d.
TOD ,o the veil s.,,Isd rnls nnon ,b,,
It., IT,, l.I W IrI.