The sun. [volume] (New York [N.Y.]) 1833-1916, 1896-03-25

be made or how m officer shall be appointed Is
not the same thing us making the appointment
itself. and the case of the state eX rel. Attor-
ney,General US. kennon ct al. supreme Court
OF ohio december Term, 1887, : ohio State
Reports, PIP. $50 and 5Gl. Is decisive on this
lin this case Judge Brinkerhon said: TO
make good tbs claim, IL must be made TO APP
pear that the power to direct the manner"
the mode. the way in which an act shall be
done, and the power and authority to do the act
itself, are one and the same thing. But that
they are not Identical or equivalent to each
other Is too clear for argument. and almost too
clear to admit Of illustration. To prescribe the
manner OF election or appointment to an office
is an ordinary legislative function. To make an
appointment to Office is an administrative
And in the same case Judge Swan says:
Now. providing by law tie manner In which an
appointment shall he made and making the ap-
continent itself are two different things. The
first, is pointing out the mode In which IA thing
shall he done and the other Is doing the thing
Itself; the one Is legislative and directory. the
other administrative.
prcme Court of the State of Indiana, the State
eX rol Jameson ct al agt. Denny, the Court said:
wei! AS other provisions Of the Constitution,
%confcrs on the General. Assembly tho power to
II may by law reserve the right % appointment
To itself. IL is obvious, however. that there Is q
broad distinction between providing the mode
or manner Of doing a thing and doing the
thing itself, think 1t plain that the power
to provide By law the manner or mode of max
ing an appointment does not include the power
to make tho appointment itself. As the right
to prescribe by law the manner of appointing to
a new office created by the Legislature does not
carry With it the right to make such appoint
inent. we know OF no prov sion in the Constitu-
ton under which such right can reasonably DO
asserted
"Th" case at bar should be distinguished
from the matter of the New York Elevated
Railroad, reported in ~ New York, IN several
respects. In that case 1t ia true that the objeo-
ton made that the act delegates legislative
power TO the Mayors Commissioners was over
ruled. But ii should be noted that far greater
powers are given to tho RAPID Transit Commits
sioncrs in the new act. In the act OF 1873 fifty
huuschulders and taxpayers could originate
proceedings. whereas in the acts now under
consideration the Board. upon its own motion,
may from time to time determine whether u
rapid transit railway or railways should be
established. The fact that by the fourth section
or the new rapid transit acts the Board can
initiate the proceedings upon its own motion.
and that the Board is TO conduct an inquest and
Investigation would seem to ditfcrentiate the
case from the law of 1870 in that full legisla-
tive power /. now conferred upon the Commits
sioners. Then again. the act OF 1878 did not
take away from the local authorities of the
county or tie city the power OF appointment.
In III" limited time allowed me il has been
impossible for me To- argue this case IA fully as |
should have desired or as fully as the gravity
all the constitutional objections which | have
indicated believe that the rapid transit acts
should be held TO be unconstitutional and void
and that the judgment of the Special Term in
the tax payers suit should Toe reversed and that !
the motion now made for the confirmation OF
the report of the Commissioners be denied"
E!thu Root argued against confirmation OF
the commissioners report, as did Mr.. De Witt, |
Mr.. Roosevelt. and Nj. Xabriskic. Messrs.
futile and Bushby submitted without argu-
ment briefs Directing to n part of the report.
Mr.. Shepard, for the Commissioners, will make
his argument Tomorrow