The democrat. [volume] (Weston, W. Va.) 1868-1874, 1873-04-21

AHNHNi q
We're it to appoint the members Of the
Board Of Directors Of the Asylum, ii
would invest persons holding no Office
with trust and duties.
The Governor thinks that Section
8, Article ". Of tho Constitution has
been already "judiSially examined
aud passed upon" in the case Of the
State vs.. VIM. Kennon and others. Z,
Ohio State Reports, $40, and that
nearly the identified points raised by
this bill were before the court" We
arc Of "a different opinion, aud Ihiuk
that this case is an authority against
bis views. A brief consideration Of
the case will show the question involv-
ed and decided. The Constitution Of
Ohio contains this provision: mo ap-
pointing power shall be exercised by
the General Assembly" Constitution
Of Ohio, Article II, Section ~. The
language hero used is very compre-
hensive, much more so than the
language Of cur Constitution-aud
prohibits the General Assembly from
appointing agents or trustees as we'll
as officers, So comprehensive is this
language that tho trainers Of that Con-
stitntion supposed that it might deprive
each house Of the General Assembly
Of The power to elect Its own officers,
and therefore tho following provision
was adopted. Each house, except as
otherwise provided in this Constitu.
ton, shall choose its own officers"
Constitution Of Ohio, Article II, Sec
ItiOn s. The Constitution Of this State
referring TO n certain class of officers,
provided that "nO' such officers shall
be appointed or elected by the Legis-
lature." Constitution, Article VII,
Section s. THIS language does not
prohibit tho Legislature from sxercis-
ing the appointing power to the same
extent to which |. would have been
prohibited by tho language oftho Ohio
Constitution, and was never supposed
to take from each house the right to
elect its own officers. The Lsgisla-
ture Of Ohio passed an ACT comforting
upon William Kounon and two othcS
persons, who held no Offices, Of any
kind at the time. the power to appoint
a board Of directors Of tho penitentiary
aud tho commissioners Of the State
House.
The Csnstitutionality of this act
was the question before the Court and
tho Court held that the act was uucop.
stituticnal.
There we're two concurring opinions
delivered. Ono of these opinions, and
much tue clcarest and mos. concise.
was delivered by Judge SWAMI. He
states that tho question decided is
that the Legislature could not confer
upon tue defendants the power TO make
these appointments and adds, "Whslh-
or the General Assembly can annex
tho power Of appointment Of the direc.
tors Of the psnitentiury and State
House Commissioners 10 the Office Of
Governor, or to any other existing Of.
icer or board ice do no. decide, sim.
ply because the question is not before
u.s." lie, however, does express an
opinion upon this question, for he
says, 1.-the General Assembly an.
mex 10 an Office already eristing and
filled additional powers and duties,
upon what ground can It be claimed
that this is the exercise by tho GcnCr-
al Assembly Of tue appointing pswo. 2
Certainly upon this only, tina! the
General Assembly has enlarged or ad.
dod to the powers and duties Of an cx.
isting Office. But Tits is really dbIur6;
for II adding to the duties Or powers Of
existing Offices, is an exercise of the
appointing power, then every new du.
~ required, or power conferred SpOn
any Sta.a, county or township officer
must demand the exercise by the
General Assembly Of the appointing
puwur aud forbidden by the Constita.
ton. But these fallncioui positions
arise out Of a misapprsheusion Of what
is mean. by tue exercise Of the up.
pointing power. An office, until GIL.
ed, is an impsrsonal thing, an incor.
pOrsal hereditamsnt. Il |, filled by
the exercise Of the appointing power,
and when filled tho Office and officer
both exist. The office itself may, by
law, be enlarged in It's power, or new
duties enjiOnod without touching the
appointment. or tenure Of 0ficO Of the
incumbent, or hissuccOssot. |. would
therefore. seem highly probable. al
though tue question is not before us.
that tue General Assembly could,
without displauiug or appointing Gov
ernor Of Ohio, annex TO the Office Of
Governor, the power of appointing d.
rector, Of the psnitentiary, or The du-
ty Of performing any other legitimate
executive function. If tho General
Assembly conferred upon The incum.
bent Of tue guberna.orial chair OIL
cial public powers as az individual, so
that be would continue to exercise the
power, thus conferred, phe,her he
continued TO hold lie Office Of Governor
or not, i. would seem quite nantes. to
my mind, that tho General Assembly
created an Office in such case aud ex.
orcissd the appointing power, But
these questions are not before us, OK
cCpt to comment upon, with view to