Pine Bluff daily graphic., 1904-01-03
THE LEGISLATIVE COM NISSION WINS
Jeff's blue Print Commission Knocked Out by tfe
Supreme Cour.

arday morning sustained the capitol
commission elected Dy the Legislature
and declared the one assumed to nave
been appointed by Governor Davis to
be illegal.
The following is the opinion in full:
Thos. Cox, ct al against state Of
A kansas, ex rel.
This is an action brought by the at
torney- general against Thomas Cox
and four other defendants, who were
appointed by the governor to serve as
members of the state ce. .pitol board
created by an act Ct the last legisla-
ture. The action in question provided
that the memoers of the board should
be selected by the two houses of the
legislature in Joint session. In pursu-
anee of this provision of the act COM
missioners were duly elected by the
legislature, but the governor, acting
en- the theory that the legislature had
no power to make such selection and
that the power to appoint the members
of the board was vested in him, ap-
pointed the five defendants to serve in
that capacity, and this action is
brought to test the validity of the ap-
pointments made by him. Both par
ties wish to have the matter determin-
ed and no objection is made as to the
form of the action or to the proceeding
adopted, and so we will proceed to
consider the question presented. 1t is
plain. we think that the governor has
no inherent power by virtue of his
position as the chief executive officer
Of the state to make these appoint
ments, for in the United States the
general power to appoint officers is not
inherent in the executive, or in any
other branch Of the government, but
is a prerogatlve of the people to be
exercised by them or by those de-
partments of the state to which has
been confided by their constitution, %
Amer. and Eng. Law (ex rely $40.
If the governor has such power it
must be because the constitution has
conferred it upon him and thus infer
entialy at least forbidden the legisla-
ture to make such appointment CIR to
confer it upon any one else other than
the governor. Now an examination Of
our constitution Will show that it not
only contains no general prohibition
against the exercise of the appointing
power hy the Legislature, but
it affrmatively shows that it
was the intention of the franz
ers of the constitution to permit the
Legislature to exercise such power to
a limited extent. This is shewn by
the provision to the effect that if in an
election for governor, secretary Of
state, treasurer, auditor or attorney
general, two - mere candidates for
either Of said offices shall receive an
equal number Of votes. lhen one of
those persons receiving ele highest
vote of both houses of the genera1eas-
sembly." Art. G. sec 3, ccnsti. 1874
1t is shown also by the section which
declares that whenever an officer.
civil or military, shall be appointed by
the Joint Or concurrent vote of both
houses, or by the separate vote of
either house of the general assembly,
the vote shall be taken viva voce and
entered On the journals Art 5, sec.
Il. The contention that this section
refers only to the officers of the gen
eral assembly such as clerks, pages
and others necessary to the discharge
of the duties of that body, does not
seem Ia be borne cMt by the language
used Why should it speak OF the an-
pointment of officers. "civil or mill-
tarv" if that was the meanins9 we
Go not recall any military officer a.
S5hed to the legislature or to eitLea
Ct its branches, and we think that the
larepag ge used is too broad to justify
the obstruction contended for.
It is Of course not usual to have va
canoies in Office filed by appointment
made by the general assembly, and
under our constitution there are many
Offices which could not be filled in that
way, But though not the usual meth
cd the language of the constitution
above quoted shows that the trainers
of that instrument intended that It
ssse 'fasFs 'sasff9sft la''s'gt s. tie' -