The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-06-26
SUPREME COURT OF APPEALS
WILLIAM l.. BRIDGES
Us.
ruOuAS SHALLCROSS'
rnon Mandamus nisi.
II. FerSuson's Argument

rreseuts two questions for the consider
stiop Of the court, as follows:
/ Is the act passed January H. 1915
entitled "Au act amending and re'en'
acting section one OF chapter ftty'slx'
ot the Code of West Virginia, concern
;ns the Board OF Public Works. un'
constitutional and void; and o
Is the act passed April !, 1873 en-
titled IAN act to amend and re-enac,
ssct;ons two, six. seven, fourteen and
nineteen of chapter one hundred and
a;x,vstb,ee Of the Code of West Nlr-
s;n;s @ " unconstitutional and void?
The first act in question does no. no.
create a Board of Public Works. ou'
s;mnlv adds to the board already exist
inc The Attorney General and State
SUPERINTENDENT OF Schools. The Board
of Public Works, consisting OF the
Governor, Auditor, and Treasurer, was
in existence ON the 22d day OF August,
1872, when the new constitution took
effect, and the first question that arises
in relation to this board is, was 1t abol'
ished by the adoption of the new con-
stitution -,
Section Sc of Article VIII OF the
present constitution provides that such
PARTS of the common laws OF this State
as are in force when this constitution
GOES INTO operation, and are not re-
pugnsnt thereto, shall be and continue
the law of the State until altered or
repealed by the legislature
II the law creating this Board was
repugnaut to the present constitution
then it was repealed by its adoption
otherwise not. Hit was repugnant to the
new constitution and therefore repealed
bylts adoption, then it is conceded thai
the act OF the 18th of January above
recited could not give it new life and
vitality.
It's claimed that the law in question
is repuguant to the new constitution. IN
this, that in establishing a Board o1
Public Works composed OF the Cover.
nor, Auditor and Treasurer, it created
a new, distinct, and independent office
and thereby clothed these officers with
two distinct, separate and independent
Offices at the same time; and that this
is forbidden by section 4 Of Article WI
of the new constitution which provides
that neither the Governor, State Su'
perintendent OF Free Schools, Auditor
Treasurer nor Attorney General shal
hold any other office during the term o
his service"
The questions involved in this con'
troversy have been thoroughly and In
geniously y discussed by his EScellency
the Governor in his veto message o
the 25th of March last, and l shall take
the liberty of referring to that message
for the grounds upon which it Is claim
ell that the act in question and the act
OF which it is amendatory are repug-
psnt to the constitution.
The message referred to asserts three
propositions.
|. That the Board of Public Works
isa public corporation.
y, That its members are public
officers. >,
,. That is is illegally constituted be-
cause il was created by al act OF the
legislature in direct violation of that
clause of the constitution, that declares
that mo such officers shall be appointed
or elected by the Legislature"
Now we can admit first, that the
board is public corporation, and sec
ond, that its members are public Or
ficers, tut what kind of officers are
they Why simply Governor, Audito-,
Treasurer, State Superintendent ct
Schools and Attorney General nothing
more, and nothing less. The funda-
mental error Of the message is assump|
ton that there is any such office as
member OF the Board OF Public Works
separate and distinct from the offices OF
Governor, Auditor, Treasurer, State
Superintendent OF Schools and Attorney
General.
When these officers exist the board
exists. when they cease to exist the
board also ceases to exist. And if these
officers were to die or resign to morrow,
there would be no Board OF Public
Works until their places, or those OF a
majority OF them, were filled IN the
manner prescribed by law.
In Virginia, under the constitution
oflS5l, there was such an office as
member OF the Board OF Public Works.
The board was composed OF three COM
missioners elected by the people from
three districts into which the State was
divided for that purpose, and power
wss given 10 the legislature to abolish
this Board when in their opinion a
Board OF Public Works was no longer
necessary. See Const. OF Va, Art. V
Sec. II to Is.
And by an act OF the legislature o.
the reorganized government OF Virgin
ia passed July l6, 1861, this Board was
abolished.
Had the present constitution OF this
Safe created such an office as the con-
s,i,ution Of Virginia did, separate, dis
tnct ard independent from that OF any
other office, it is conceded that the Gov.
esnor and the other State officers nameo
would not have been eligible to tht
Office Of member OF said board.
But our constitution creates no such
Office or board, aud the act in question
simply provides that "The Governor
Auditor, Treasurer Superintendent o
Free Schools and Attorney Genera
shall be and continue q corporation
under the style OF the Board of Public
Works"
The act creates no Office, nor does II
appoint any officer to an office. i
onl ly provides that five State oficer'
created by the constitution shall be
corporation with a corporate name
whose duties as such board are pre-
scribed in the Code, and in the acts o.