The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1875-11-11

/ Allow me 70 say GDAt the main ques-
/ ton involved, has been SO frequently ad-
/ Indicated by the highest courts in the
country, that you will readily see that my
position could not be otherwise than it
Is. am with great respect,
Yours truly,
JOHN }. JACOB.
EXECUTIVE DEPARTMENT, !
CHARLESTON, May l., 1873.
. Hon. JOSEPH SMITH:
/ DEAR SHIN compliance with the
promise made to you IN my note Of the
l4th inst. | submit the following rea
/ sons showing that the courts have no
| jurisdiction in the matter of the removal
of the seat of government from Charleston
to Wheeling:
First The three departments Of gov
eminent, Legislative, Executive and Ju-
dical are separate and distinct $50 that
neither shall exercise the powers proper
/ " belonging 10 the others See Article
I of the Constitution. Now in which de-
partment OF government does the power
to remove the public property in charge
/ of the Executive officers reside? The
! Constitution of the State answers in
terms so explicit that no room is left for
/ doubt. The Executive Department
| shall consist OF Governor, Secretary Of
/ State, General Superintendent Of Free
Schools, Auditor. Treasurer and At
torney-General
They shall except the Attorney
! General reside at the seat of Government
/ during their term of Office and keep
there the public records, books and papers
pertaining to their respective offices.
| The Constitution in the clearest terms
| thus gives these officers the custody of
the public records, books and papers per-
tanning to their respective offices. and no
! citizen or officer can interfere with them
in this right; can Obstruct them in the
exercise of this right without direct
violation of the Constitution. The ar.
gulnent Is in a nut shell-if the JudiCi.
AIRY attempt to control tho custody Of
such books, papers and records, it exer-
cises "pOwers properly belonging to the
| Executive Department, and any and nil
orders made by it to this end are in con-
travention of the Constitution, and there
fore void.
SecOnd-The question where the Seat
of Government of the State is located, is
purely and solely public or political
question, affecting no private right, or
vested interest, and therefore, wholly out
side OF the jurisdiction Of the Judiciary.
! can conceive of no question 30 far re-.
moved from the domaiN Of Judicial in
quiry rs this one; not even the election of
u United States Senator, Representatives
in Congress or Governor, Is so foreign to
the jurisdiction of a court, Us the question
ofthe Seat of Government OF the State
and vet no court would assume 10 pass
Judgment upon -uch elections.
Third-The three departments Of gov
eminent are independent and co-ordi-
rate Neither can supervise, control or
restrain the official action Of either OF the
Others The Executive cannot control
the Judiciary; nor can the Judiciary con-
troll the Executive You as Judge of the
Seventh Circuit, have no more right 10
Interfere with the custody OF the papers
of nv office. than |, as Governor of this
State, have the right to interfere with the
custody of the papers pertaining to your
courts. The attempt of either otus to do
so, would be an nwarrantable asSump-
ton OF power. The point has been so
frequently adjudicated, that | think YOU
will pardon me for citing some cases
which YOU may desire to examine.
Hawkins ". Governor, Arkansas,
$40: State vs.. Governor, butcher "
Jersey r., 33l; People vs.. Governor, 40
Illinois, l29; Real vs. Ray and the Gov
ernor, l. Indiana, 554; State va. Town,
Governor, 3 Georgia, 800; Maursu v,
Governor, Rhode Island, 1872; Houston
vs.. Randolph, % Texas, 81; Dermit,
Petitioner, 81 Maine, sos; Bledsoe vs.
international K. r., 40 Texas, 537; Ken
lucky VS. Dennison, Governor, "a How
ard, So; Mississippi VS.. Johnson, Pres /
Wallace, AIS. have other authorities,
but deem these sufficient.
But the specious question Is sometime
asked, is the Governor above law? i
be beyond the process OF the Courts? |
answer that, as an individual, As eitl-
zen. be is liable TO be sued for any breach
of contract or for any tort committed by
him, and that he is liable to prosecution
for a violation Of the penal code, just as
any other citizen; but a. Governor OF
the State, he ia the Chief Executive
thereof, charged with the duty OF seeing
that the lave are faithfully executed, he
not subject to the orders OF II Court ~
to the discharge Of his official duties If
he Is derclict in duty, or guilty Of NAL
faasauce il office, the Legislature can
impeach HIM; and to it alone l. he re-
sp0nsible tor his official conduct As
well might it be asked whether Judges
are above law and beyond the process OF
the Courts. The simple fact seems to be
tina, each department OF the government
j. independent within it, own limits and
that there can be no conflict Of authority
unless one of them steps out Of It's own
limits and attempts - interfere with the
functions Of the others.
Fourth. The Both section, Of Article
of the Constitution, ia as follows:
The State of West Virginia shall
never be made defendant in court OF
law or equity" The proceeding against
the Governor and other officers OF the
State, now penang before YOU Is SUI
IN effect against the State; they are mere
officers or agents of the State and have
no personal or private interest IN the
MISTER in controversy. And IN the ia
nous case of Kentucky rs. Deunison, "A
Howard 50, in whIsh Judge fancy de-
livered the opinion OF the court, it was
, expressedIy decided that - suit By or
agains. the governor II H State, as such
in his official character, is Il suit by or
against the State
Fifth. fla court has the jurisdiction
claimed, then it mas the power TO enforce
it, orders for contempt By imprisonment,
and thur practically depose any or al
oftAc chief executive officers OF the State
THIS brings IL to such an absuriity rs 10
show conclu-ively iha. no such jurisdIc-
ton exists.
-. In conclusion, allow me 10 refer 20 the
prac,ica. result, OF the present proceed