Year: 1873




shall appoint 1t was shown that tn


Judges OF the Supreme Court Of Ohio


the Attorney General OF Ohio, and othe


distinguished lawyers, had, in the cas


formerly cited, conceded that the powe


of the legislature to direct the manner


OF appointment included the authorit,


to annex that duty to existing offices


1t was shown also that the former con


stitution recognized this Interpretation
OF the phrase, and numerous Instance
of the use OF the word manner in th'
present constitution were cited to shos
that it includes the persons by whom al
act is to be done. 1t was shown tha
the same construction was placed upor
the same Language in the constitution o
the United States. Mr.. Ferguson ther
proceeded as follows;


Having now, as think, clearly dem
onstrsted that the power to direct ths
manner Of appointment or election tc
Office, necessarily includes as well tht
power to direct by whom il shall bt
done, as the process OF doing it, | come
back to section OF Article 7 OF the pres
ent constitution OF this State.


The claim set up by the Governor, al
already stated, is, that unless the con.
stitution itself designates some other
officer or tribunal TO make an appoints
meut or election OF particular officer,
the power to appoint that officer be-
longs to him, and that too, whether
the Office to be filled is provided for in
theconstitution, or by former or subse-
quent statute.


In support OF this position he says,
"There are but three departments OF
the State Government, the Legislative,
Judicial, and Executive, and if the APP
pointing power is denied to the Legisla-
tive and Judicial Departments, 1t can
only reside in the Executive Depart.
ment. So far we have solid founda-
ton"


The conclusion thus arrived at is,
certainly, a very extraordinary one.
Upon what principle Of law, reason or
common sense does it follow, that be-
cause the appointing power is denied BY
the constitution to the courts and TO the
legislature, it necessarily rests in the
Governor. 1t seems to have been for
gotten by the author of this singular
mode OF reasoning, that there is such q
tribunal as the people, who have some
rights in the matter, and that there are
other Executive Officers, as well as
himself, in whom this power of appoint
ment might be vested by law. This
logic is about as forcible as was that
of the boy in regard TO his fathers mill.


The old man had three sons, John,
Tom and Dick, and for some reason or
other he issued peremptory orders that
neither John or Tom should ever set
foot inside his mill. So one day Dick
happened to pass along by the mill and
seeing lot OF people in there. he de-
liberately walked in, pistol and club in
hand, and commenced the process OF
ejectment, aud when asked for his
reason for 30 doing, replied, Daddy
said that neither John nor Tom should
20 into the mill, and as / am the only
other boy he has, nobody has a right to
20 into that mill but me"


THE argument then proceeds to show
that in cases not otherwise provided for
in the constitution, the legislature has
the power to confer the election or ap.
pointment OF any officer. either upon
the qualified voters OF the locality con-
cerned, or upon any one or all OF the
executive officers OF the State, or upon
any board of officers legally existing
and vested with the performance OF
official duties which are executive and
administrative in their character. Mr..
Ferguson says:


| am not informed who the drafts
man OF section 8, Article VII was, but
| will venture the assertion that neither
the author Of the section, nor any other
member OF the Convention intended to
confer upon the Governor any such
power OF appointment, as he now con-
ten Is for. In fact the section does not
confer upon the Governor the power to
appoint any officer whatever, except
with the advice and consent OF the
Senate. And he can only, in this way,
appoint all officers whose Offices are
established by this constitution, or
shall be created by law, and whose ap.
pointment is not otherwise provided
for" Two classes Of officers are here
provided for: let. Those whose offices
are established by the constitution, and
I'd. Those whose Offices are or shall be
created by law. As already stated there
is not q single Office established by the
constitution, without provision being
made for filing it either by election or
appointment. So that the only effect
and operation OF the section is as to the
election or appointment OF that class OF
officers created by statute.


Now it is q most extraordinary pro-
position to assert that the trainers OF the
constitution intended 10 give to the
Governor. by and with the advice aud
consent OF the Senate, the appointment
OF all officers whose offices had been or
should thereafter be created by the leg
islature, unless some other manner Of
election or appointment Is provided for
in the constitution. How could the
constitution provide specifically for the
election or appointment OF an officer
whose Office had not been created. The
very idea is absurdity.


y


1t will be observed also that both
sections provide for the election as we'll
as the appointment OF officers. Thus
showing that the framers OF the copsti.
tuition contemplated the creation OF
Offices by the legislature TO be filed by
election by the people. And yet If the
Governors construction OF these two
sections be correct, the Legislature has
no power under the Constitution to
create an Office, and provide Tor an