The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-10

officers, and the filling OF all yacancie
not otherwise provided for By this Goa
stitutiop, or the Constitution OF tn
United States, shall be made in sucl
manner as may be directed by law, bu
no appointing power shall be exercise
by the General Assembly, except a
prescribed in this constitution and il
the election Of United States Senators
and in these cases the vote snail b
taken viva vocs." With this constitu
ton in force, the Legislature OF Ohio, ii
1858 passed two acts enactlng BY ont
of them, THAT board shall be con
stituted, denominated the commissioner!
OF tie state honse, composed of three
persons to be appointed by William
Kennon. Asahel Medbery and VIM. B
Caldwell" This act prescribed tot
term Of Office ofthe board Of commits
sioners OF the state house, end provided
that, "in case any vacancy shall occuI
in said board, it shall be filled by tht
said William Kennon. Asahel Med
berry and William B. Caldwell" By
the other act it Was provided, "Tha
there shall be appointed by William
Kennon, Asahel Medbery and William
B. Caldwell, or a majority OF them
three directors ofthe Ohio pen!te ntiary.
1t fixed the term Of Office OF these
directors, and authorized Kennon, Med.
oery and Caldwell or majority OF them
to remove the directors go to be appoint
ed, and fill any vacancies that should
occur.
There is remarkable similarity, in
both language and substance, between
these acts OF the General Assembly ot
Ohio, and the acts OF March %, and
April l, 1873, OF cur own legislature
except that the Ohio acts conferred au-
thori.y on Wn. Kennon and his asso-
cistes by name, and the acts OF our
Legislature confer it on the Board OF
Public Works, consisting OF the Auditor
and his colleagues; and that the acts Of
the West Virginia legislature attempt to
confer a more extended authority than
the Ohio acts did on Mr.. KenDoa and
his associates.
Upon an information in the nature OF
quo uarranto against Mr.. Kennon and
his associates, alleging that they had
assumed to exercise, without any lawful
warrant or right, the authority which
these acts OF the Ohio legislature pur-
ported to grant to them, the Supreme
Court OF Ohio decided that the authori-
ty to appoint others to office so attempt
ed to be granted was itself an office, and
the acts of the legislature legislative
appoiatment 70 office, in manifest viola
ton OF the constitutional provision that
no appointing power shal( be exercised
by the General Assembly," The State
OF Ohio IS Kennon and others, ! Ohio
State K. j46.
The case OF the State on the relation
of Clark and others U. Stanley and
others, GG No. Car. r. SO, resembles
the Ohio case, except that in the North
Carolina case, the General Assembly Of
that State, instead of designating by
name the persons intended to annex
such 3 power OF appointment to exist
ing Offices as additional duties TO be
performed by the incumbents thereof
The tenth section OF Article III Of
the North Carolina constitution is as
follows: "The Governor shall nomin-
s.e, and by apd with the advice snd
consent OF a majority Of the Senators
elect, appoint all officers whose offices
are established by this constitution, or
which shall be created by law, and
whose appointments are not otherwise
provided lor, aud DO such officer shall
be appointed or elected by the General
Assembly"
Compare these provisions with the
Slh section OF Art. VII o! our own con.
sti,ution, and they will be found to be
rearly Identical in language, and en-
tirely so in substance, 20 far as they
bear upon the question now under con-
sideratiop.
Under this constitution, the General
Assembly OF North Carolina
in 1872 passed an ac;, by the frs! sec
ton OF which they enacted, That all
power now ves,ed in the Governor Of
the State to appoint proxy or proxies,
or directors, 10 represent the Interests
OF the State in any corporation or con-
pany in which the State has an interest,
be and the same is hereby revoked and
annulled ;" and by the second section,
That the President OF the Senate and
Speaker OF the House OF Representa-
tiyes are hereby authorized and empow.
cred, By paper writing signed by them,
TO appoint all proxies and directors in
all corporations in which the State has
an interest."
The Supreme Court Of North Carroll
IA, upon quo warrQnto brought to test
the validity Of tnis enactment, and decid.
ed that The power o'appointment attem'
pted 10 be conferred by the General As
sembly on the President Of the Senate
and Speaker OF the House was an Office
and that the act Of the Assembly con-
stituted q legislative appointment TO
Office, in clear violation ofthe constitu-
ton o. the State.
Is the position conferred upon the
Au iitor and his colleagues BY the ect OIL
January If, 1873, an Office?
In effect, this question has already
been answered. The nature and extent
OF the powers conferred and duties i'm
posed upon them by this act
bave been stated from the statute:
OF this State and it is from the
character OF these powers aud duties
that this question is to be determined
rather than from any general defni.
ton. The act Of January Il, 1873, as
signs, BY public authority, TO the Audi
tor and his colleagues, continuous pow
era and duties OF an important chsrac.
ter, for public purposes. 1t, therefore
confeys an Office. The powers sad du'
ties 60 assigned are wholly different
! ,-.-, ,Losa rhich ora apnronriata IN tn 8