The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-21

executive cannot exercise or assum
except by legislative authority, and tn
power which. in it's discretion
it confers it may also withhold @
confer in other directions, Cooley
Con. Linn. 114-ll5. The Constitution
OF a State is a limitation uponthe pow
era of the legislative department OF th'
government, but it is to be regarded as
grant OF powers to the other depart
ments. Neithe the executive nor th'
judiciary, therefore, can exercise any
authority or power except such as II
clearly granted by the Constitution
Field Us. People 2, Seam. 50.
Where there has been eontempera-
neous practical construction ofpar;iculal
provisions of the constitution or OF sims
liar provisions IN constitution or con-
stitutions on the came State, preceding
the constitution containing the provision
or provisions in question, which has beer
aca uieeced in for a considerable period
considerations in favor Of adherlng to
this construction sometimes present
themselves TO the courts with plsusi-
bility aud force which it is not easy to
resist. Indeed, when particular con-
structiou has been generally accepted
as correct, and especially when this has
occurred contemperaneously with the
adoption OF the constitution, or under q
Immediately preceding, and
by those who had an opportunity to
understand the intention Of the
constitution or a provision
thereof in question, it is
not to be demanded that a strong
presumptive exists that the construc'
ton rightly interpret5 the Intention
Cooley Con. Linn. g., The Supreme
Court oft United States has frequent
ly considered this subject. "ln Stuart
V. Laird |, Cranch R. 299, decided in
1909. that court sustained the author-
ity of its members to sit as. circuit
judges on the ground OF a practical con-
commencing with the organ
ization of the government. In the
case of Coheus v. Virginia, 6 Wheaton
Ais, Chief Justice Marshall said, great
weight has always been attached, and
very rightly, to contemperaneous expo
sition." In the case Of the Bank OF the
United States v. Halstead, 10 Wheaton,
63. Justice Thompson Gays, ut any
doubt existed whether the act o! li9Z
vests such power in the courts, or with
respect to its constitutionslity, the prac'
tical construction given to it ought to
have great weight in determining both
questions" In the case 'of Ogden v.
Saunders II Wheaton r. 29O. Justice
Johnson in commenting upon the
subject says, Every candid person will
admit that this is a very different thing
from contending that the frequent rep-
etition of wrong will create right. 1t
proceeds upon the assumtion the
contemporaries Of the constitu'
ton have claims to our de-
ference on the question OF
right, because they had the best oppor'
tunities of informing themselves OF the
OF the trainers Of the
Constitution, and OF the sense pat upon
it by the people when it was adopted
by them. See also Martin w. Hun
ter, l Wheaton 35l. Rogers vs. Good
win 2 Massachusetts,. State vs. May
hue, --4S7. Bingham ys. Miller
II, Ohio 446. johnson ys. Joliet and
Chicago Railroad Company, % llll-
nois R. 2O7.
Article I, Section 4 OF the Constitu-
ton is in these words Neither the
Governor, State Superintendent OF Free
Schools, Auditor, Treasurer nor Attor-
ney General shall hold any other office
during the term of his service. The
Governor shall be ineligible TO said
office for the four years succeeding the
term for which he was elected"
Article 7, Section s. reads thus
"The Governor shall nominate, and by
and with the advice and consent OF the
Senate "a majority OF all the Seua.
tors elected concurring by yeas and
nays) appoint all officers whose offices
are established BY this constitution, or
shall be created by law, and whose ap-
pointment or election is not otherwise
provided for; aud no such officers
shall be appointed or elected by the
Legislature"
1t is argued by the counsel for de-
fendsnt, first, that the act oil January
II, 1878, in question, is legislative ap'
pointment 10 Office In contrsvention
of the said eighth section Of
article 7 OF the constitution, and
second, that the persons who bold
and exercise the power assigned to
them by said act, hold two different
offices, in contraveation Of the same
article. These propositions the defend
ant atirms as the reason why the acts
of the legislature are null and void.
The propositions are affirmative, and it
is for the defendant to show to the
Court clearly aud beyond reasonable
doubt, that one or both OF them are
true. Has this been done in the ques-
ton to be decided. In disposipg Of
these propositions we propose to con-
slider the second propositionfirst. 10
order to a right understanding OF the
Constitution upon the questions at issue
it is necessary that we should here quote
q few other sections thereof. Article
4 of the Constitution is entitled, "elec-
tons and officers, and the Sth section
thereof is il these Words ''the legisla-
ture, in cases not provided for in the
Constitution, snail prescribe by general
laws the terms of Office, powers,
duties and compensation OF all public
officers and agents, aud the manner in
which they shall he elected, appointed
and removed" Article 5 OF the Con-
stitution is as follows, "the legislative,
executive andjudicial departments shall
be seperate and distinct, so that neither
shall exercise the powers properly be-
longing TO either Of the others; nor
shalt any person exercise the powers OF