The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-06-26

1 SeCllOu j, VI AElIClc IL VI IuC CVus
stitution provides that the Governor,
Auditor, Treasurer, State Superintend-
ent of Free Schools and Attorney Genes
raj shall perform such duties as may
be prescribed by law" This provision
of the constitution seems to have fitted
across the mental vision OF the author
of the message, for he says 'it may be
said that the act creating the Board Of
Public Works did not create new Of
ficers, but that it merely imposed new
or additional duties upon officers al
ready in service"
Yes, Governor. since you so hand
somely express it, this is just what we
do cav, and not only 80, but it is just
what we have the right, under the pro-
vision OF the constitution already quoted
to say. And how how does the author
OF the message meet this position 2 He
says: "If the Legislature should declare
that the Auditor, Treasurer, Attorney
General and Superintendent Of Free
Schools should constitute the Supreme
Court of Appeals, this, in one sense,
would be imposing new aud additional
duties upon these officers. But what
would be the new and additional duty
thus imposed on them? Nothing less
than the duty Of accepting a new and
additional Office"
The force and weight Of this logic is
not only wonderful but well nigh crush.
ing. 1t certainly wouh be imposing
upon them "the duty of accepting q
new and additional Office" which they
could not accept, ami which the legis>
lature had no right to impose upon
them. Why? Because the office Of
Judge ci the Court OF Appeals is sep'
srate .ld distinct Office, created by the
constitution, and to be filled by an elec.
tion by the people, 1t belongs to the
judicial department OF the government,
while the office OF Auditor, Treasurer,
&c, belongs to the executive depart
ment, and the constitution Article V
provides that "the Legislativ, Executive
aud judicial departments shall be sep
arate and distinct, so that neither shall
exercise the powers properly belonging
10 either OF the others; nor shall any
person exercise the powers gilmore than
one OF them at the same time.
And now l submit to the court as
we'll as to the counsel on the other side
whether there is even the slightest an
aloyy between an act conferring upon
the officers of the executive depart-
ment OF the government additional
powers and duties which are pro perly
administrative and executive in their
character, and one conferring upon the
officers of the executive department the
duties properly belonging to the judi
cial department.
Again the message says: "The Treasu.
rer sitting as a member Of the Board Of
Public Works is not discharging any Of
the duties pertaining to the Office OF
Treasurer, he ia dischargng the duties
Of another office. In other words he is
holding two offices at the same time.
This is true OF the Auditor, Superinten-
dant of Free Schools, Attorney General
and Governor. When all these Of
fcers sit as members OF the Board Of
Public Works the validity Of the action
OF the board is not derived from the
fact hat it's members hold other offices,
for its action would be none the less
valid if its members consisted OF per-
sons who mold no other offices in the
State government.
| have quoted thus largely in order
that the position takeo by the message
NAV be fully understood, and now |
propose to demonstrate its tallacy. l
take issue with the author of the mes
sage upon every proposition contained
in the above quotation and lst, l as
sert that the Treasurer when sitting
with the other State officers in the
CAPACITY of a Board OF Public Works,
sits there as Treasurer, and that the
duties he there performs do pertain to
his office OF Treasurer, because the law
has said that as Treasurer be shall
be one of said board and perform said
duties; and that, therefore, he is not
holding two offices at the same time.
>. assert that when the officers
com posing the Board OF Public Works
sit as sucn, the validity OF the action OF
the board is derived from the fact that
its members hold other offices.
tits not John J. Jacob, \. b. Benz
nett John S Burdett, B. w. Bryce,
and Henry NJ. Mathews, who consti-
tute the Board OF Public Works, but 1t
is the Governor, Auditor, Treasurer,
State Superintendent of Free Schools
and Attorney General who constitute
il. and it is their official character alone
which entities them to sit in said board.
Their right to act as such board be-
Gins and ends with their official exls-
Ience as Governor, Auditor, &c, and
3 I deny that the action OF Board
Of Public Works created by the leglsla-
ture, composed oil persons who hold no
other offices in the State and who were
appointed as members thereof by the
| legislature, would be as valid and bind
ing as the action OF the present BOARD
This would be the creation OF an
office by the legislature, and then filing
| it by their own appointment, which
they cannot do under the constitution.
Ard this is precisely what the onlo
! legislature undertook TO do In the case
referred to in the message.
TMr. Ferguson then related the facts
concerning the case OF the State &c vs.
Kennon 1t al, 7 Ohio reports, PIP o4s
and 553 and quoted as follows from
Judge Swans opinion. c,,
III it be conceded that the Genera,
assembly could, or. if it be conceded
tho, Il could not annex to an existing
off;cs such as the office Of Governor
with the consent OF the Senate, !he s
mower Of appointing directors. OF the
PP.";,an,;sry' and State House commls'