Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1891-04-24
Hon. Il. B
Virginia:

OF 1891, entitled "An act to provide foi
the collection, arrangement and display
OF the products Of the State Of West
Virginia at the Worlds Columbian En-
position in 1898, and to make an appro-
priation therefor" submitted TO me by
Your Excelency for an opinion, has
4 been considered.
The fifteenth section of Art. 6 of our
Constitution is as follows:
"l5. No Senator or Delegate, during
the term for which he shall have been
elected, shall be elected or appointed to
any civil Office OF profit under this State,
which has been created, or the emolu-
ments of which have been increased dur
ing such term, except Offices 10 be filled
by election by the people. Nor shall
any member of the Legislature be in-
tereSted, directly or indirectly, in any
contract with the State, or any county
thereof, authorized by any law passed
during the term for which he shall have
been elected"
The Constitution OF the United
States, Art. /, sec. q, and OF most OF the
other States OF the Union contain re-
strictons upon the rights of the
members OF the legislative depart
ment to be elected or appointed
to an Office created by legisla-
tion during their term Of Office as leg
iSlatorS. Hough's American COnstitu-
tions, Vol. ll,6l9. Some OF these re-
strictions (as in the Federal Constitu-
tiOn) are more stringent than those
contained in our organic law, inasmuch
as they prohibit appointment or cleo
tion to any civil Office so created; others
continue the prohibition for year
after the legislative term is ended,
while others are confined, like our Con-
stitution, to prevention Of election or
appointment TO civil Office Of profit
under the State.
1t would be useless for me to give IN
detail the several constitutional provis-
ions. They all have the same general
design and intent to suppress and pre-
vent a public evil. Under the provis-
ions of the ConStituion of the United
States, Art. !, Sec. 6, r. vas decided that
the acceptance by member OF any OF
fee under the United States, after he
has been elected to and taken his seat
in Congress, operates as forfeiture OF
his seat. Van Ners' case, CT. X Hall,
l22: Yell'S case in 1867; PaSchaFS An
notated Constitution, END ed. 80.
On the acceptance and qualification
of a person to second office, incompati-
BILE with the one he is theL holding, the
first Office is ipSo fdctO vacated. People
VS.. Carrique, 2 Hill, 90. 1t operates as
an implied reSignation; an absolute
determination OF the original office.
Rex VS.. Trelawney, Burr, 1915; Mill
ward VS.. Thatcher, Term X. ST. Bien-
court vs.. Parker, - Tex. 262; Judge
O'Melvery's case, jameson on ConStitu-
tional Conventions (4th ed 3l9.
There can be no question that II a
member of the Commission will hold a
civil Office OF profit under this State,
such Office has been created during the
term OF the Senators and Delegates
who passed the act creating the Com
mission. Sec. 3, Art. vi OF Con. OF w.
Va.
In my opinion, the terms OF the act in
question make membership upon the
Commission civil Office.
Every man is public officer who
hath any duty concerning the public;
and he Is not the less a public officer,
where his authority is confined TO mar
row limits: because It is the duty OF his
Office. and not the nature OF that duty
which makes him a public officer and
not the extent OF his authority :
Bac. Abr. Title "OniceS and Officers,
Jacobs Law Die. vol 1, p. 433.
"A public Office is the right, author
ity and duty, created and conferred by
law, by which for a given period, either
| fixed by law or enduring at the pleasure
OF the creating power. an individual is
invested with some position OF the SOW
eign functions OF the Government, 10 be
exercised by him for the benefit OF the
public. The individual so invested is a
public officer" Mechem'S Public Offices
and Officers, sec. /.
An Office must be a delegation Of some
sovereign function Of government for
the pnblic benefit by virtue OF law
and not by contract The powers ot 4
public official spring from the govern
mental authority and the declaration OF
the governmental will, and they are to
be exercised by the person for the time
holding the Office and terminates with
his death. resignation or removal. They
are never conferred by contract,
The duties OF public officer continue
though the incumbent OF the office be
changed. They are not TO be performe
by the officials personal representative
after his death, but by his successor in
office. Opinion Of Chief Justice
Marshall in L. 5. VS.. Maurice, . Brock
u. 5. C. C.) 1O3.
Requiring an oath to be taken by the
appointee TO Office, though usual, is not
essential to the existence OF al Office
Salary or fees are not necessary TO al
office.
"A public officer is an agency OF th'
State, and the person whose duty 1t Il
to perform that agency is public OIL
GER. Nor does it make any difference
whether he receives salary and fee
and takes an oath. these being mere In
cidents and no part of the office itself
Nor Is IL material whether one act or
series of acts are required to be done.
State VS.. Stanley, &C n. c., SO; Mechem'
Public Offices and Officers, sections = u
II, inclusive; Shelby VS.. Alcorn' g
Miss. 973.
The term officer, in its common ac
ceptation, is sufficiently comprehensive
to include all persons in any public sta
tion or employment conferred by gov
ernment." Naugan vs.. English, 5 Col
80.
The constitution OF Missouri pre-
hibited the appointment to any civi
officer under the State Of any senator o
representative during the term TO
which he may have been elected, pre-
yided the Office was created, o
its emoluments increased durin
his term. Three persons wer
named in an act creating tn
Commission, the Water Commissioner
for the city of st. Louis, and one
them was a member of the House
Representatives. The Water Commi'
sioners, it was held by the court, In tn
case of State VS.. Vale, IL Mo. 30, wer