The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-07-08
SUPREME COURT OF APPEALS.
WILLIAM l.. BRIDGES
THOMAS p. SHALLCROSS.
Upon Mnndamus nisi.
Con. James s. Whears Argument.

argument, to what may be considered,
and I hope will be received, as a mere
introduction to the full and elaborate
arguments ofmy learned associate, Mr..
Lamb. To him has been entrusted the
closing argument for the defendants;
and I have determined, so fsr as the
diminution OF the time allowed me will
have that effect, to give him all the time
quired for full and free discussion.
The question Is a grave and impor-
taut one; and I am anxious to meet it
fairly. The petitioner for the writ OF
mandamus, claiming that he had been
duly appointed Superintendent Of the
Penitentiary at MoundsAille, under the
constitution and laws of the State, given
his bond and taken the oath Of office,
demanded of Thomas ?. Shallcross,
who had been previously duly appoint
ed Superintendent of the said Penitens
tiary, under the laws in force at the
time of such appointment, and then in
possession thereof, by virtue OF his said
appointment, but whose term Of office
as such Superintendent had expired and
been determined by its own limitation
and the appointment and qualification
OF your petitioner as his successor, to
admit your petitioner to the office afore-
said, and surrender the charge and cus-
tody of the Peuitentiary."
The return Of the defendant to the
mandamus nisi denies the constitution
ality OF the act OF the Legislature pas
sed January l4th 1873, by which it is
enacted, 81. The Governor, Auditor,
Treasurer, Superintendent OF Free
Schools, and Attorney General, shall be
and constitute a corporation under the
style of the Board OF Public Works !"
| it also denies the coustitutionality OF the
law passed April l, 1873, amending
and re-enacting sections ., 6, Z, IA and
19, OF chapter l03, 10 the Code OF West
Virginia, defining the powers aud duties
OF the Board OF Public Works. There
being no question raised or intended 10
be raised, by either parts, to this con-
troversy, as to the facts stated in the
petition, nandamus niSi, or return, the
demurrer OF the plaintiff, Bridges, to
the return Of the defeudeut, Shallcroes,
presents the following questions 0! Law
for the consideration and determination
OF this court:
l. Can the Legislature of this State
appoint the Governor and other execu-
tive officers named in the act OF Janu-
ary IA, 1873, to "be aud constitute a
corporation under the style of the Board
OF Public WorksT
2. Can the Legislature authorize and
empower the Board Of Public Works ss
thus constituted and appointed, to APP
point the Board OF Directors OF the
Penitentiary and the Superintendent
thereof, and discharge the other inn
portant and continued duties set out
| in the act passed April l, 1873?
As an answer to the first OF these
questions, the counsel for the defendant
cite the lst clause of the 4th section OF
the 7th article OF tAe constitution
Neither the Governor, State Superin-
ten dent Of Free Schools, Auditor,
Treasurer nor Attorney General, ehall
hold any other office during the term OF
his service" and to both questions they
answer by citing the Sth section Of the
7th article OF the constitution: THE
Governor shall nominate, and by and
with the advice aud consent OF the
Senate, "a majority of al the Senator's
elected concurring by yeas and naJs),
appoint all officers whose Offices are
established by this constitution CT shall
be created by law, and whose appoint
meut or election is not otherwise pro-
vided for; and no such officers shall be
appointed or elected by the legislature"
There are other clauses aud sections Of
the constitution which are proper to be
considered in connection with those
cited, and amongst others are the fol-
lowing: the Sth section o! the 4!h
article; The legislature, in cases not
provided for in this constitution, shall
prescribe by general laws the terms OF
Office, powers, duties and compensation
Of ali public officers and agents, aud
the manner in which they shall be
elected, appointed and removed" and
the last clause OF the Is. section OF the
7th article, referring to the officers Of
the Executive department, "and shall
perform such duties as may be pre-
scribed BY law"
| Everyone, at all familiar with the
history of the American revolution, will
readily see that the great leading object
of the patriots OF that day, was, to esta5.
llish the independence OF the colonies, as
against the crown Of Grea: Britain;
against whom their complaints OF NAL
administration and acknowledgement
were wholly directed. Their indepen-
derce was, and only could be establish
ed, by throwing Off their allegiance to
the crown. In the preamble to the
constitution of Virginia unanimously
adopted June 90, l776, they solemnly
declare,-"Whereas, George the Third,
King OF Great Britain and Ireland. and
Elector OF Hanover, heretofore entrust-
ed with the exercise Of the kiuglY Office
in this Government, hath endeavorei to
peryert the came into detes.able and
insuppor.able tyranny, By putting be
negative on laws the most wholesome
and necessary for the public good &c
, by which several acts OF mizrule, the
government OF this country as to.meTly =
, exercised under the crown OF Great
; Britain, is totally dissolved" The came
, idea, hostility to the crown aud monsr-
, chicsl government az then existing, in-
duced the adoption Of the coat OF arms
Of Virginia. Whilst their PROSTATE,
discrowned monarch sYnbolizsd TO
, th en- the overthrow OF the kingly tyr
amy, the genius OF liberty with her foot
upon the neck of the monarch, symb5l
lied the independence Of the colony. and