The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-07-10

tFRhStsVer\ u pro ibitod by IaV % y,
done directly cannotAlegSlly be ehectet
'byan indirect and cironitous continuance
IBp0m'S le0ql Marims, Edit. Of 1868, p
3G3.) "Whatevcr Is done in fraud OF
law, Ia done in violation Of It." 8 Peter!
80; 9 RhSat. 1853. THAT the Transaction
assumed this form, there Is no doubt
butthtB does not relieve US from the neces
sitt inqairIng what ii was in substance
Constitutional provisions would be OF liz
tie value they could be evaded by
mere change OF forms. We
must give such a construction 10 the Con-
stitution as will preserve its great leading
ohiects intact" 10 Ohio STATE r. IS. "
aWhat cannot be done directly" say
the Supreme Court Of the United States in
Cummings Y. tie 6Iate Of Missouri, 4 Wal
lace sos, "cannet be done indirectly. The
Constitution deals with substance, not
,sliadoWG It's inhibitionS are levelled al
tho thing, not the name. 1.-The
inhibition can be evaded by the form OIL
the enactment, its insertion in the funda-
mental law was vain and futile thing"
In the People v. Bangs, "a Ill. 1856, o
Judge having incurred tho displeaSure Of
the LegiSlat1re, they attempted to legiS-
late him out Of office by changing the cir
cult. But the court said "No attempt,
by O form OF words or mode Of expression,
TO abolish the old Esd circuit, and create
another OF the same number, or by giving
1t any other number or any other name
can change the substance Of the thing; and
It 10 by the substance and essence of the
law that 1t must DO Rdjudged." And as
the substance and essence Of the act In
question was to effect an unconstitutional
purpose BY indirect means, the court sd
Judged 1t to be void.
The case OF the State Y. RennoH, Z Ohio
State r, was decided upon the principle
which have been endeavoring to eluci-
date, that in comparing the act Of the
Legislature with the Constitution, the
substance Of the thing, and not the form
or name, Is to be regarded. In that case,
il was ssid by the Court (page 557-8, Of
the volume,) ut Is true, the General As.
sembly seems to have carefully avoided
giving to the defendants any official name
or designation. But surely this Is immA.
terial to the question. The official or IN.
official character OF the defendants is 10 DO
determined, not by the name, nor by the
presence or absence Of an official designa.
ton, but by the nature Of the functions dc.
Volyed upon them. II the General As.
sembly had In terms enacted that board
oil commissioners of the appointing power,
TO consist Of three members, be and Is
hereby constituted, and that William Ken.
non, Asahel MedOery and William Is.
Caldwell, be and hereby arc 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 officers, ifthe act
was one OF constitutional validity. Ger
tainly, they would then be called officers
and would have an official name. Yet II
we look at the substance Of things. where
is the difference between the actual enact.
rnent and the one supposed? There 10
none whatever" 't0-.T. al'.- 81. I.
And II our Legislature had enacted:
"Thcru shall be board OF commissioners
to manage and superintend the Cumber+
land Road and Works Of tho internal in.
prOvemcnt owned by the Stale, 4ld TO
make appointments to and removals from
office, fill vacancies and fix the compensa.
ton Of officers, on behsli Of the State,
which Board shall consist Of five mem
bers and be called the Board OF Public
Works and Appointments; and that tho
Auditor, &c, be and they are hereby ap-
pointed such commissioners" where, il we
took 10 the substance Of things, and not
the mere form Of words, would be 1he dit.
between the actual Bhactments Of
our Legislature, and the one supposed !
In the history d this State, bEiet as It
has been, we have remarkable, illuStra.
tiUH OF the nature and operation 0t this
legislative power Of da1GEiag 70
IN existing Office the power OF appointing
Others to office. I'VE should not t0tgetthe
act oil February %, 1885, by which the
Legislature Of this State annexed such q
power of appointment to the office nl the
Judge OF the NiRlh- Judicial Circuit, the
Hon. Nathaniel HARRISON nor, will. the
people Of that CitcIit, during fhe present
generation at least, forget the nature and
operation Of the power bestowed upon the
Hon! Judge y, 49, I, 2. yIJ1 .
The fist section Of Artfcfe.VII of our
Constitution, SO far rs material 70 this
case, Is as follows; l.. WFhe Executive De.
partment shall consist ofs a1verhoF, Zee.
IBttry' of State State, superintendent 81
Free Schools, Auditor, Treasurer, and At
torpeY General, who shall be, eX-oflcio,
Reporter Of the Oourt OF Appeals. They
shall perform such duties as may Be pre-.
Scribed BY L1to."
AS have already said, the whole Con.
stitutlOn Is to be examined with view to
arrive at the true intention Of each part.
Different clauses are to be compared with
each other, for one may explain, or quail
Iy another, or constitute an exception
10 II,
Let lis consider the operation Of this
section, in connection with other proVis-
ions Of the constitution.
The Auditor shall perform such duties
as may be prescribed by law. Ii was Ia.
bOriOuBly argued that preAcIibed BY hp
meant preteribed By, TIC Legislature. The
only error In this argument was in sup.
posing that any one disputed the proposi,
lion. --...... '.-' !
The Auditor, therefore, Is to perform
such duties as may b. prescribed by the
Legislature; but the Legislature cannot
appoint him 10 q different office, for This
e forbidden BY Art. VII, Sec. 8; nor. can
he hold any other Office than that Of Aud.
itor, Tor this Is forbidden. by Section 4 Of
The same Article. His Office Is TO DO that
81 Auditor only, and in that capacity he Is
one Of what the Constitution, in Sections
II and IS oil that Article, calls the Subor.
Innate officers of1tAe executive depart
nent .... - .5gss :, r..d,e IA, r-~a. |
Within the geneEAl scope Of that office,
he Legislature may prescribe his duties.
They may confer upon him any powers,
and require the performance Of any dui
lies, which are appropriate to the office,
and adopt and enforce such regulations as
h av deoTy, yanS,tbS1a * 1ea1aoS tho rOh1fo