The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-28
THE PEsITENTIARY DECISION,
A Case In Point.
WEsToN, July 25, 1873.

Il
| attribute partisan motives to the Cour'
Of Appeals 10 their recent decision in
the case Of Bridges VS.. Shallcross leadi
me to call your attention to recent de-
cision by the Supreme Court O! Appeals
Of Ohio, reported in 2lst Ohio St. IA
and in the American Reports, vol. s
page "a. This case was not cited BY
counsel on either side 10 our court or
by the court Itself 10 delivering iis
opinion. The questions involved are
similar, and it goes lar to sustain the
action of our court. We have hereYtwo
courts OF different States deciding a
similar question in precisely the came
way; the judgment OF neither court
being cited as authority in the other.
OF one of these courts. certainly, it can
not be said that partisan feeling dictar
ted their decision. This fact is at least
a strong argument 10 favor Of the nom
partisan and impartial character
OF the opinion Of the other
court. l send YOU q short ex-
tract from the syllsbus OF the case and
from the opinion Of Scott, C. 81. The
case will be found 10 some extent ex-
plsnatory of the case OF the State on
relation of the Attorney General vs.
Kennon, Ct al, ! Ohio ST. SAG, a case
used before il our court, and in that
aspec. will prove interesting,
Walker, plaintiff. in error vs. City Of
Cincinnati, ct al, 81 Ohio St. II,
"The legislature Of Oaio authorized
the Judges of the Supreme Court to
appoint trustees ola contemplated rail-
wsy. Held % that this WAS not an
exercise Of the appointing power, for
hidden to the legislature by article ii,
section 81 OF the State Constitution,
!: such trustees not being public officers
in the constitutional serse, and their
appointment by tue Court being a le-
gitim&te function; (o) that TIE oct
was rot in violation d; article 4, Geo
ton II Crthe State Constitution, pro-
hibitinc the Judges tr5h holding any
other Office, such power of appointment
being only an additional power or Guiy
annexed 10 an existing office. aud
not new Office"
Scott, c. j., in his opinion, says: I'VE
shall first enquire whether the power Of
appointment conferred by this act upon
the judges Of the Supreme Court in
wolves the exercise o. an appointing
power by the general assembly.
Were the JUDGES thereby appointed
to q public Office? Ia support OF the
affirmative OF this question We ere re-
terrei TO the deciSion OF this Cour; ID
case O; the State on relation Of the AT,
to.rey General as Kanro7, CT al, ]
Ohio st. $40. In that case it was held
that the selection and designation by
| name OF the defendants, by the general
assembly, to exercise continuously andt
IS part OF the regular aud permanen
administration OF government, import
ant public honors, trusts and duties ls
an appointment to Office. Bat we think
the present case canuot be brought
within the principle OF that decision.
| In this case there is no designation oil
individuals by name TO exercise any
public ;uucticns whatsoever. 1t Is
clearly the case OF an additional power
or duty annexed TO existing Offices. and
not the creation ola Few Office. Upon
the filing OF a petition by the city soiic-
itor in the Superior Court, praying for
an appointment Of trustees, it is made
the duty OF the judges OF that court to
make such appointment, and to eater
the same on the miCutes OF their court
The power o! appointment aud o! cubs
sequent remova. for unfaithfulness can
be exercised only by the court as such,
and all power Of control in the premises
on the part Of the judges cease with the
termination OF their judicial Offices. IT
is true that the act coniers anew power
on the judges Of the Superior Court
but, as was said ty Judge Swan in his
concurring opinion in the case referred
| to, IF adding TO the duties or powers o.
existing offices is an exercise of the ap-
| pointing power, then every rev duty re-
quired or power conferred upon any
State, county or township officer mus
be deemed the exercise by the genera
assembly of the appointing power and
forbidden by the constitution"
Had not the Mtsllgeacsr better senc
a correspondent 10 Ohio to ascertsi'
whether the Supreme Court Of that Stat'
is o rebel court or not?
CONSTITUTION.