The democrat. [volume] (Weston, W. Va.) 1868-1874, 1873-07-28

I AAeAAtNH W y AhFy VI wv sNNAAA NuEhllllL
scnltisutioa, and OF knowledge on our par
u what coniemponpeOus practical cons
luetloh may have been given 10 the Ian
guagc employed In the section quoted In thl
report Of the case, or to similar provisions
by the legislative and executive department!
Of the government OF North Carolina, We
feel that we are not authorized 10 give thu
case much weightin arriving at our conClu
siOnS in this. case.
The case ofthe state ef Ohio, on relation,
kc., vs.. Wn. Kennon and Others, contained
In Tth Ohio state reports, commencing on
page $40, has also been brought before US 10
argument by the counsel on both sides. II
appears In that case that there Is provision
In the constitution Of the state OF Ohio pro.
yiding that "no appointing power shall be
exercised by the general assembly" The
legislature Of Ohio, notwithstanding this
provision, conferred by an act or acts, upon
three private citizens, who held no Office, thu
power and authority 10 appoint certain off.
GERS Of tie state hsusc and pcnitentiary, and
the courtin the case cited decided that the
act WIS unconstitutional, and therefore null
and void. But the court held in It's opini,
on that the question on the authority OF the
legislature 10 confer the power Of appoint
ment 10 an existing office or officers did net
arise In that case, and was therefore not de.
cided. Bat one ofthe judges Of the court
did dkcuGS the question Ia his opinion dc.
llvsrcd in the case, and that was Judge Swan;
aud he held and announced these views as u
judge, to.wit; "But it Is said that mas
much rs tue general Assembly have power TO
direct by law the manner in which elections
and appointments 10 Office shall DO made,
aud maJ, in tue exercise Of this power, an
mex II by law to some existing office, such
as the governor yirtuio efiicio, there Is
practically no difference between the gcncr-
ala ssembiy Vesting tue power In indiyid-
uals designated by name, rs Ia the LAWS be-
fore as IN annexing the power 10 an exist
Ing office. This liue Of argument will rot In
this ca Sc bear the slightest examination, for
ifit were true would have no application
to the case before US, But It has not, per-
hapS, the usual merit ola false position
plausibility. Let W exaRine II, II Il he
conceded that the general assembly could,
or II II be conceded that II coIld not, annex
10 an existing Office, such as the Office Of
governor, with the consent Of the senate, the
power OF appointing directors Of :he peni-
tertiary and state house commissioners, II
would not In any manner touch the question
before us for the laws we are now c0nSid-
erlug, instead ofannexing to any existing
otice the power disappointment, etc, have, In
the hrst place, provided for board oiap-
pointmout, clothed with public functions,
and without providing for the manner In
which tho Offices Of this board should DO
alled, bave directly appointed and elected
the members Of this board, thereby cxerti.
Stag, In respect 10 the board, the appointing
power. Whether, therefore, there be any DIFF
ference between.thc general assembly creating
an Office a.d appointing the Incumbent there
Oi,or annexing the power Of appointment tc
an Office already existing aud filled, has no ~
plicttlOn whatever 10 the case before u.s.
but II may be proper to enquire whether
there Is not difference In this respect, tho
Il, whether the general assembly. In fact OK.
srCised tue appointing power by annexing
to an Office already existing and Allied, the
power Of making appointments aud filling
vacancies. II the general assembly annexed
TO an elllce already existing and oiled addi-
liona powers aud duties, upon what ground
can II be claimed that this Is the exercise BY
the general assembly Of the appointing
powerS Certainly upon this only, that tie
general assembly hns enlarged or added to
the powers and duties Of an existing Office.
But this Is really Rbsurd, for II adding to the
powers and duties Of existing officers Ia px.
sreiSing tue appointing power, then every
new duty required or power conferred upon
any state county or township officer must
be deemed TIC exercising by The general u.s.
Iembly of the appointing power, and forbid
den By the constitution. But these fllla.
eiOus positions arise out OF misapprchrn-
sion Of what Is meant by the appointing
power. An office, until filled, Is an impcr.
lonal thing, an iueorP0real hereditamcnt.
II sfilled by the exercise Of tho appointing
power, and when filled the office aud officer
both exist. The Office itself may by law 6C
enlarged In Its powers, or new duties Gu
joined, without touching the appointment
or tenure OfOilice Of the incumbent or his
SUCCESSOR. Il would, therefore, seem highly
probable, although the question Is not be.
fore US, that tho general assembly could,
without disrlacing or appointing a COVER
nor Of Chic, annex to the Office Of governor
the power OF appointing directors Of the
penitCniiary, or the duty ofperf,rming any
other legitimate function. II the general
AsSe ubly conferred upon the incumbent Of
the gubernAtorial chair official public duties
as an individual, 50 that he would continue
10 exercise the powers thus Coaf.rred, whe-
Their he continued 10 hold tile 'ice OF goT-
ernor OF not, IL would Seem quite manifest,
10 my mind, that the general assembly Gre
ated m office In such case, aud exercised the
appointing power. but these questions arc
not before Us except TO comment upon, with
Sriew to aid those who seem to be Unable
10 distinguieh between an 0fic and an off,.
cef, between official powers conferred Nv law
upon, and annexed 10 IN Office, and The In.
dtyiduAl incumbent or officer" We have
quoted thus largely from tho opinion OF
Judge Swan because the opinion Is 10 point
In this case, Is able, and as /, seems 10 Us,
unHnswerable. There 10 no question direct.
ly OF necessarily arising In this case as 10
the power and authority In tie legislature
to authorize the board Of public works 10
OIL vacancies, or as 10 what Is the proper
construction 10 be given 10 the 9th section
Of article7. The appointment conferred
upon the complainant here is not 10 oil a
Vacancy, but Is an original appointment for
a full term.
Under the authorities, principles, facts
aud views above stated, we arc OF opinion
tina the act Of tho legislature Of this state,
passed on the l4th day Of January, 1873, en-.
Titled ian act amending and re-eaac,ing
section Of chapter so OF The code Of West
Virginia, concerning the board of public
works." aud enactlng that said section be
amended and ie.enaeiel 50 as to lead as
follows: ~. hegoyernor, nuditor, trea.
surcr, superintendent Of free schools and at.
tornSy general shall be and continue cor.
poratiOn under tho style OF tho board OIL
constitution Of this state, but Is valid md
binding. And We arc also further Of ihc
opinion that so much Of tho act passed b.
tic legislature Of this state on the first day
NJ Anril lg13 entitled an art In naenJ aud