The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1873-06-27
SUPREME COURT OF APPEALS.
WILLIAM l.. BRIDGES
THOMAS r. SHALLCROSS
Upon A Mandamus ntst.
Col. ". II. Hogeman's Argument.

sutuhonallty OF two acts OF tne Legls-
lature of West Virginia, one, an act
creating tide Beard OF Public Works,
passed January IA, 1873, and the other
relating to the Penitentiary, passed
April l, 1873.
The fret of these acts provides that,
"the Governor, Auditor, Treasurer,
Superintendent OF Free Schools, and
Attorney General shall be and continue
q corporation under the style OF the
Board of Public Works"
The second among many other things,
provides, that "The Board of Public
Works shall on the 18th day OF
April, in the year 1873, and every two
years thereafter, appoint a Superinten-
dent of the Penitentiary at Moundsviile,
whose term of service shall begin on
the first day Of May, next after his ap-
pointment, and who shall be its chief
executive officer" &c, &c.
On behalf of the defendant it is in
sisted,
l. That the fret OF these acts is re-
pugnant to the following provisions Of
the constitution of the State, viz:
Neither the Governor, State Superin'
tendent OF Free Schools, Auditor,
Treasurer, nor Attorney General shall
hold any other Office during the term
of his service" Article 7, section 4.
That the act OF January 18th consti-
tuting these officers Board OF Public
Works appoints them to another office
and is therefore void.
2. That the same act is repngnant
to the following provisions of the con-
stitution, viz:
"The Governor shall nominate, and
by and with the advice and consent OF
the Senate "a majority of all the Sena-
tors elected concnrring BY yeas and
nays) appoint all officers whose offices
are established by this constitution, or
shall be created by law, and whose APP
pointment or election is not otherwise
provided for and no such officers shall
be appointed or elected by the legisla-
ture. Article 7, section s. And for
that reason is void.
Sd. That the constitution has conGd-
ed the power of appointment to office
in an authority that has not exercised
it in behalf OF the complainant or OF
those claiming to act as Board OF
Public Works.
Inasmuch as the appointment OF the
complainant and HE right to the pos
session OF the office, to which he claims
to have been appointed, depends on
the constitutional existence Of the Board
OF Public Works, it follows and it is
insisted that if the defendant succeeds
in establishing the three propositions
already stated, or any one Of them, that
complete defence to the mandamns
nisi has been made out, and that this
proceeding must be dismissed.
lAssuming that the complainants
counsel would claim that the Board OF
Public Works exercised de facto author.
ity if not de jure, Mr.. Hogeman pro-
ceeded to show that such claim is not
applicable where the possession of the
office is itself in question, and that it
could not be properly considered in this
case. After disposing Of this point, he
proceeded as follows
1t will be readily admitted that legis-
lative acts should not be held uncou-
stitutional when the provisions OF the
constitution claimed to be violated are
involved in great doubt. But It is in
sisted that when the reasonable con-
struction OF the constitution shows that
the legislature has exceeded Its powers
and usurped functions which by the
constitution it is prohibited from ex.
ercising, such action OF the legislature
should urhesitatingly be declared void.
Thirteen Grattan SIS; Virginia cases
20-40; Gill and johnson 463; 7
Ohio State 562.
For good reasons this is expressly
enjoined upon the Courts in the consti-
tuition article s section 81.
1t is believed that the fair and reason
able construction Of the constitutional
provisions applicable to this case, show
a usurpation Of power by the legisla-
ture.
The usurpation OF power which the
convention that framed and the people
that adopted the constitution seemed
especially anxions to withhold from the
legislature.
No man who has carefully compared
the present with the old constitution
can fail to observe the earnest purpose
to limit, restrict and hedge in legisls-
tive action.
Nor can he fail to observe the pur-
pose to add to the importance and dig
nifty Of the office Of Governor.
With q view OF meeting some re-
marks OF complainant's counsel,I desire
to present the following general obser-
vations:
/. That the words Office and officers
are words of general meaning, and when
used in State constitution apply only
to Offices and officers created by and
deriving ther authority directly from
the State, and who are accountable to
the State for the performance Of their
official duties. They do not compre-
hend suce as relate to county, district
or municipal affairs. See 7, Peters
247; 13 Grattan 578; II n. Y. 63.
2. Every saying in the constitution
unless 9 fixed purpose is plainly man
ifested; will be taken to relate to the
time when the constitution takes effect.
3. That the mode of appointment TO
office claimed TO be prescribed in the
constitution is not 90 dangerous as it is
feared or represented to be. In many
other States it is regarded as one OF the
best that can be devised, and in Vir-
ginia was the most popular and result
ed in he'most efficient governmentIthat
the commonwealth ever had.
The same mode of appointment is
strongly commended in the Federalist
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