77'J 



WEST VIRGINIA. 



the Utter to surrender tho penitentiary to the 

 complainant, etc. The design of thin action 

 was not so much to decide the contest be- 

 tween the said parties in litigation as to de- 

 termine whether the acts of the Legislature, 

 oat of which that contest arose, were constitu- 

 tional and valid, or unconstitutional and void. 

 The matter came before the court in the July 

 term of 1873, when it was argued at length 

 during many days, and decided by the court. 

 The following were the real questions at issue, 

 and the judgments rendered on them respec- 

 tively, as stated by Chief -Justice A. F. Hay- 

 mond: 



The only questions presented for the considera- 

 tion and determination of the court by the demurrer 

 of the complainant to the return of the defendant 

 made to the mandanttu nut awarded in this cause, 

 are as follows, viz. : 



1. Is the net passed by the Legislature on the 14th 

 day of January, 187S, entitled " An act amending 

 and reSnactintf section 1 of chapter 56 of the code 

 of West Virginia concerning the Board of Public 

 Works, which provides that the Oovernor, Auditor, 

 Treasurer, Superintendent of Free Schools, and At- 

 torney-General, shall bo and continue a corporation 

 under the stylo of the "Board of Public Works," 

 repugnant to the constitution of this State, and there- 

 fore null and void ? 



2. Is the act of the Legislature passed on tho 1st 

 day of April, 1878, entitled " An act to amend and 

 renact sections a, 6, 7, 14, and 19, of chapter 168 of 

 the code of West Virginia," providing among other 

 things that there shall be a Board of Directors of the 

 Penitentiary, consisting of five persons appointed by 

 the Board of Public Works on the 4th day of March, 

 or as soon as practicable thereafter, and also provid- 

 ing among other things that tho said Board of Pub- 

 lic Works shall on the 15th day of April, in the year 

 1 878, and e very two years thereafter, appoint a Supcr- 

 intendent of the Penitentiary at Moundsville, whoso 

 term of aervioo shall begin on the first day of May 

 next after bin appointment, and in so far as its pro- 

 visions are involved in this case, repugnant to the 

 constitution of this State, and therefor null and void t 



Under the authorities, principles, facts, and views, 

 above stated, we are of opinion that the act of the 

 Legislature of this State passed on the 14th day of 

 January, 1878. entitled " An act amending and re- 

 enacting section 1 of chapter 58 of the code of Went 

 Virginia concerning the Board of Public Works," 

 and enacting that said section be amended, and re- 

 enacted so as to read as follows: " 1. The Oovernor, 

 Auditor, Treasurer, Superintendent of Free Schools, 

 and Attorney-General, shall be and continue a cor- 

 poration under tho style of the ' Board of Public 

 Works,' is not repugnant to the constitution of this 

 State, but is valid and binding. And we are also 

 further of tlic opinion that so much of tho act passed 

 by the Legislature of this State on the first day of 

 April, 1874, entitled " An act to amend and r 

 Motions 4. i), 7. 14, and 19, of chapter 168, of the 

 cod* of West Virginia, aa is directly involved in, 

 and applies to this case, and especially the parts 

 thereof by which it is enacted that tho Board of 

 1'uMio Works shall on the 16th day of April, in the 

 vcar 1871, and every two ycara thereafter, appoint a 

 Superintendent of the penitentiary at Moundnville. 

 whoa* Unn of service aball begin on the first day of 

 JUy next after his appointment, and who should 

 hav the power and perform the duties of said office 

 prescribed by law. is not repugnant to the constitu- 

 tion of this State, but Is, and are, valid and binding. 

 Both of which said act* of the Legislature are men- 

 tioned and referred to by the defendant in his return 

 to the nuiKfrmw nM fssucd and returned In this 



It is therefore considered by us that the return of 

 the defendant Shallcross made to the said writ of 

 mamlanmt niti issued and returned iu this cause, is 

 insufficient in law : and that upon the demurrer filed 

 by tho complaint Bridges to the said return, the law 

 is in favor of the complainant, and that the said de- 

 murrer must be sustained, and that a peremptory 

 mandamut do issue in this case, and that the com- 

 plainant Bridges do recover against the defendant 

 Sliallcrose his costs about the prosecution of this 

 proceeding in this court expended. 



The determination of this cose, and the cir- 

 cumstances which gave occasion to it, are 

 referred to by the Governor in his message to 

 the Legislature, dated October iM, 1^78, as 

 follows : " For reasons stated in my message 

 to you, in returning without my approval the 

 bill in relation to the Hospital for the Insane, 

 I was in the firm conviction that the power to 

 appoint this officer (the Superintendent of the 

 Penitentiary), and others of a similar charac- 

 ter, was vested by the constitution in the 

 Governor; and, therefore, that the appoint- 

 ment by the Board of Public Works was ille- 

 gal and void. I, therefore, instructed Mr. 

 Shallcross, who was then the Superintendent 

 of tho Penitentiary, to retain his office until 

 he received further orders from me. There- 

 upon legal proceeding were instituted, and 

 judgment was rendered ousting Mr. Shallcross 

 from office, and inducting Mr. Bridges. Al- 

 though my convictions on the important ques- 

 tion involved remained unchanged, with the 

 view of avoiding a conflict of authority, which 

 in some of our sister States has produced 

 discord, strife, and confusion, I instructed Mr. 

 Shallcross to o_bey the judgment of the court, 

 without stopping to inquire too nicely as <to 

 the rights of the Executive Department as an 

 Independent coordinate branch of the govern- 

 ment." 



Tho condition of the State Treasury for the 

 fiscal year ending September 80, 1823, appears 

 from the following statement : 



Balance In the Treasury . October 1. 1873 1283,453 03 



Received from all sources during the year. . . 871,089 65 



Total subject to draft DM8,141 7 



Amount expended during the jear for all 

 purposes 719,515 15 



Leaving a total balance In the Treasury, Oc- 

 tober 1, 187S 1148,598 53 



This balance is made up of the following 

 distinct funds : 



Balance of General School Fund tttl.ftffi) W 



" " I. (I 



Balance of Hospital Fnnd : 4.215 GO 



Balance of fund for general purposes 8.509 39 



Total balance, October 1, 1878, as above.. 1248,59853 



The school system introduced In Wct Vir- 

 ginia seems to meet with general approbation. 

 All the school district* in tin- St:ite, except 

 two, voted for the school taxes. In one of 

 those two districts the vote is said to have 

 been given under some misapprehension ; in 

 the other, no election was held. 



The State University appears to have been 

 very successful in all its departments. The 



