The advocate. [volume] (Charleston, W. Va.) 1901-1913, 1911-11-16

cites further that Chapter 80, acts
OF 1908, extra session, is not I'M
constitutional In it's provinces re-
quiring public officers in keeping
accounts OF public moneys, to con-
form to the system and forms
prescribed Sy the state tax COM
missioner and board of public
works.
The finding OF the court in this
case against Tetrick, in the opinion
by Judge Brannon, is almost similar
to that of Judge Williams in the
case cited in yesterdays paper in
the opinion against S. p. Smith in
! which the state tax commissioner
was also the plaintiff.
In the Harrison county case, as
In that from Kanawha county, il
was shown that the county official
In question had failed to keen his
accounts conformably with the sys-
tenn of accounting as prescribed by
the superintendent Of public &C
| counts who Is the state tax COM
| missioner whose office was in oues-
ton according to the assertions Of
the attorneys who represented the
opposition. ..-.> --...
Judge Brannon cites all the Dues
lions that have been raised bot.,
Tor and against the d efense, and
directs attention to the claim OF
the defense that "creating the office
Of tax commissioner is unconstitu..
tlonal, and that In law there is no
such office as the state tax commits
s1onership and that the plaintiff is
no officer at all and consequently
has no power as SUCH. The Judge
rules that this position rests on the
theory that the act establishes an
other executive officer in addition
TO those specified in the constitution
and says that the provision Of the
constitution relied upon for this
contention Is the one which reads
as follows, being section one, article
seven: The executive departmen1
snail consist of a governor, secre-
tary OF state, state superintendent
or schools auditor, treasurer and at
torney general"
The claim is that the TAX COM
missioner Is q state officer of the
same nature and character as the
governor and other officers namad
IN the clause Of the constitution
just quoted, and that that clause
contains all the executive officers
to NIL and execute the duties Of
the state executive department, and
no more can be added.
! I'VE cannot concur in that con-
tention. We must remember the
we'll known rule that as the Iegis-
lature is the supreme law making
power, 1t can. enact any law where
1t is not prohibited by state or
federal constitution, says Judg.
Brannon.
The opinion continues by saving
I'VE cannot think that It was tho
intention of the trainers Of the con-
stltution to limit the power Of the
legislature SO as to7prohibit it. from
creating new offices to hold in state
executive administration.
In further vesting in the leg;s-
lature the law making power re-
ierred to in the foregoing, reference
IS made to the increase in popula-
ZION and In business and suggests
that NO unintentional constitution.
should be placed upon the consti-
tuition as would initiate against the
pubic welfare and necessity. Pro-
visions OF the constitution of tho
united Slater are shown in this
opinion in just such connections az
inc one In question and the opinion
says that 1T cannot be possible that
IL was intended that all the MULTI
1arlous executive duties should rest
OH the president alone, without
power in Congress to create offices
and officers of great power, to carry
On executive administrations.
Judge Brannon says furthe,
mat we cannot think that the
statutes establishing state board of
| health' commissioner OF banking
chief inspector of mines, state board
or control, state archivist, board
or pharmacy and state game and
fish warden, besides others, are I'M
! constitutional and void. He saws
further that all along the road
during the life Of this state and tho
HE Of Virginia the legislature has
! provided additional offices and
o1hcers to p erform executive func
tons"
me judge calls attention to the
TACT that the constitution of the
United States says the elecutiv.
power Of the nation shall be vested
In the president, but it will cer-
ta1nly not be contended that 1t was
/ intended that the president was to
De the sole and exclusive officer Of
the nation.