South Branch intelligencer. [volume] (Romney, Va. [W. Va.]) 1830-1896, 1873-04-18

chosen than those used in the section just quot
ed. IL may be said, however that the clause
"whose appointment or election IS not other wise
provided for, - gives unlimited discretion 10 the
Legislature 10 confer the appointing power on
any person board that il may desire Can il
Ice possible that the Convention, in the very
section lie which the appointing power Is confer
red upon the Governor, could have ATTENDED TO
insert clause authorizing the Legislature to
confer this power upon whom il pleased. II
this is the construction 10 be put upon this Sec
ton Of the Constitution, then il is the most
striking instance Of feio Ge Sc that could be
found in legal history. IL is equivalent TO say
my that while the Constitution confers the an
pointing power upon the Governor vet il is left
to the Legislature TO say whether or not he shall
exercise it, or in other words this construction
makes the Convention say, 1--WE think that the
Governor ought to exercise the appointing pow.
er, but still the Legislature is at liberty TO do
as II pleases about it,"
take il that if il had been the intention of
the Convention TO permit the Legislature to ex.
ercise its discretion in regard TO the appointing
power, II would have given expression TO such
intention IN direct terms, and that the Consiitu-
ton would have contained no such section AS
The eighth of the seventh article. II the Legisa.
ture has unlimited discretion on this point then
that part of the Constitution comforting the power
on the Governor to nominate aud by and with
the advice and consent of the Senate 10 appoint
officers would be useless and unnecessary for
the Legislature could adopt this plan OF appoint
ment just IA well " ithout this provision as with
II. see no difficulty in ascertanng the mean
ing OF the clause, "yhose appointment is not
otherwise provided for" Other parts of the
Constitution made special provision for the APP
pointment and election of officers for instance
section eight of article eight, declares that "the
onncers OF the supreme court of appeals, except
the reporter, shall be appointed by the court or
in vacation by the judges thereof" Now the
first part OF section eight OF article seven is very
comprehensive THE Governor shall nominate
and by and with the nd vice and consent of the
Senate, Ia majority of all the Senator's elected
concurring 10y yeas and nays appoint all Off
GERS whose Offices established by this Consti-
tniion or shall be created by law" II this pro-
position had been permitted TO stand alone il
might have been construed to authorize the Co
vernon To appoint all officers OF the State in d-
rect conflict with some of the most vital provis-
ions oil that instrument To prevent the posi-
oility OF any such misconstruction, and to bring
thls section IN harmony with other parts of the
Constitution il was emnently proper TO add to
it the qualifying clause Whose appon tment
or election is not otherwise provided for that
Is TO say, whose appointment election is not
otherwise provided for in this Constitution -
ms clause cannot he construed TO mean whose
appointment or election shall not be otherwise
provided for by law, without doing violence TO
the simplest rule of grammatical construction
Ii may be claimed that the Legislature derives
Its authority 10 confer upon the Board of Public
Works the power to appoint directors for the
Hospital for The Insane from section eight of ar
ticie four OF the Constitution, which reads as fol.
lows "fhe Legislature, in cases not provided
Tor IN this Constitution, shall prescribe by gen.
era laws, the terms of Office powers ties and
compensation of all public officers and agents
and the manner in which they shall be elected
appointed and removed
In the FIRST place, ! cannot see how there is
any conflict between this section and section
eight OF article seven, which grants to the Gov
ernor the powers Of appointment by and with the
advice and consent Of the Senate This section
refers in express terms TO leases not provided for
in the Constitution" and as section eight article
seven determines rho shall appoint TO Office, the
conclusion IS inevitable that this section does not
and cannot authorize the Legislature to deter
mine Who shall appoint to Office
But admitting, for the sake Of argument that
there is apparent conflict between the two sec
tons, then 1t becomes necessary to apply the
we'll known rule in the construction Of statutes
that is, so TO constrDe apparently contradictory
provisions as TO render them consistent IL pos.
sioie. what, then, is the meaning Of this pro-
vision in the Constitution, authorizing the Lee
gslature TO provide by general laws the manner
in which 'all public officers and agents shall
be elected, appointed and removed Fortu-
nately, this point has been judcially examined
and passed upon. In the case Of the State vs
kennon d oi Ohio r. $40, nearly the identical
points raised by this bill were before the court
One provision in the Constitution Of Ohio was
mo appointing power shall be exercised by the
General Assembly - another was 'the drec-
tors Of the penitentiary shall be appointed or
elected in such manner as the General Assembly
may direct"
The General Assembly Of Ohio appointed three
persons who were authorized to appoint direc-
tors OF the peni,eDtary, claiming authority to
do so under the clause last quoted, viz "The
directors OF the penitentiary shall be appointed
or elected in such manner as the General Assem-
big may direct" TIE court in rendering its
decision which declared the act unconstitutional
said ITO make good this claim IL must be
made to appear that the power 10 direct the
D,1nHer, the mode the way in which the act
shall be done. and the power and authority 20
do the act itself are one and the same thing -
Bnt that they are not identical, or equivalent to
each other, is too clear for argument and almost
too clear 70 admit Of Illustration 70 prescribe
the H1nRer Of election or appointment 10 Office is
M ordinary legislative function To make an
appointment 20 Office is an administrative func.
Ton. And under n Constitution In which the
philosophical theory Of division Of the powers
o. government into legislative, executive and in
dicial should be exactly carried out 10 detail The
power IT prescribing the m0Hner Of making the
appointments 10 Office would fall patutaily ans
properly 70 the legislative department. while the
power 70 max the appointments would fan a.
naturally aud properly to The executive depart
This language Of he court applles with a.,
much force 20 our Constitution a. II IL had been
under discussion by The court The eighth ssc-
uon on me fourth article Of The Constitution III
reefs That the Legislature shall prescribe The MN
"| on Hppoin tmeut % Office. The eighth section
OF Afucle seventh, prescribes who shall make ar
poinimonts 10 office There is therefore 40 cop.
hict between the two sections.
10 me power IN The Legislature 20 prescribe The
I.0Hnfr OF appointment n Office, carries win n
lne tignt 20 determine the question By whom ap.