The State v. Medbery et al.

to us, with equal propriety, that the provisions of the constitution relating to eminent domain, were not operative against tho board of public works. It would, to say the least, be somewhat singular, that the organic law relating to eminent domain, and for- [544 bidding the creation of a debt, and the provisions relating to revenue and appropriations, enunciated without reservation or exception, in the constitution, should be abrogated or annulled by a reference to a mass of laws pointing out the powers and duties of the board of public works.

If the reference had intended not only to vest in the board such powers as were in harmony with the constitution, but also powers forbidden by the express terms of the constitution to be exercised, words would have been used to express the startling and extraordinary proposition that the laws referred to should have full force and effect, anything in the constitution to the contrary notwithstanding.

If this section of the constitution intended that laws conferring powers on the board, inhibited, or contravening other provisions of the constitution, should, nevertheless, have force and effect, it is on the ground that the powers of the board are unaffected by that instrument. It follows that if the powers of the board, under laws then in force, were not subordinate to the inhibition as to creating a debt in behalf of the state, neither are the powers of the board, under laws thereafter made, subordinate to this inhibition; the constitutional provision being that the powers of the board "shall be such as now are or may be prescribed by law."

If, then, we adopt the construction contended for by the counsel for the plaintiff, we can not hold, simply, that the provisions of the constitution shall be made subordinate to the laws in force when the constitution was adopted, but also that the provisions of the constitution shall be made subordinate to all laws afterward enacted relating to the powers of the board. The general assembly, through the board, and the board itself, are thus, by construction, placed beyond the reach of all constitutional restrictions and limitations. This would be an entire disregard and abandonment of the constitution; and, at the same time, a legitimate result of the construction contended for by the counsel of the plaintiffs.

We are of the opinion that the laws referred to are such only as are in harmony with the constitution.

We have conceded that the 1st section of article 8 relates ex

The State v. Medbery et al.

545] clusively *to debts for borrowed money. We have done so because the counsel for the plaintiffs so insisted, and because, whether this be a correct construction or not, was, in our view of the 3d section, immaterial to the question involved in this case. It is clear that the section limits the aggregate amount of debts, of every kind, which may be created; but whether the debts making up the aggregate may not be any debt direct or contingent, as well for borrowed money as for materials and services, we deem it unnecesary to decide in this case.

In holding these contracts invalid, we do not enter upon the question whether they were obtained by collusion or unfair means. That question is not before us. If, however, the contracts were fairly entered into, and the plaintiffs were induced, by the mutual mistake of all parties, to expend their means in preparations to perform the contracts, and have thereby incurred losses, the judgment we give in this case would be a very painful duty, if we entertained the belief that the state would avoid these contracts, and, at the same time, withhold from the contractors payment of the amount of losses sustained by them in their investments and expenditures made in good faith under the contracts. But as no principle of fair dealing between men would justify such a course, we entertain no doubt but that the state will accord to these contractors a fair judicial inquiry into the question of collusion and fraud, and a liberal and honorable adjustment of their just claims to indemnity, if the contracts were fairly and honestly made..

BRINKERHOFF, SCOTT, and SUTLIFF, JJ., concurred.

BARTLEY, C. J. I concur in the decision just announced, solely on the ground of a want of authority in the agents of the state to make such a contract as that set out in the agreed case submitted to us. I am wholly unable to reconcile the exercise of such authority by the board of public works with the provisions of the present constitution of the state.

I deem it proper, however, to say, that in the agreed case submitted, no fraud or unfairness is charged on the contractors. 546] *Now, if the contract was entered into in good faith, induced by a mistake of the agents of the state as to their powers, it is the duty of the state, upon the plainest principles of right and justice, to provide the means whereby adequate and full com

The State, ex rel. Attorney-General, v. Kennon et al.

pensation may be rendered the defendants for any damages they may have suffered by setting aside the arrangement. The repudiation of actual contracts is discreditable and degrading to any government; and the dishonor and dishonesty of refusing compensation or relief, in case of a contract entered into in good faith, and after part performance, set aside or repudiated by the state on the simple ground of a mistake of the agents of the state as to their authority to make the contract, would be no less discreditable and degrading.

THE STATE OF OHIO, ON RELATION OF THE Attorney-General v.WILLIAM KENNON, WILLIAM B. CALDWELL, AND ASAHEL MED

BERY.

Under article 2, section 27 of the constitution, which provides that the "election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution or the constitution of the United States, shall be made in such manner as may be directed by law; but noappointing power shall be exercised by the general assembly, except as prescribed in this constitution and in the election of United States senators; and in these cases the vote shall be taken viva voce." Held

1. That the general assembly may by law direct the manner in which all offices existing or created by law, or vacancies therein, shall be filled by appointment, except in cases provided by the constitution.

2. Directing by law the manner in which an appointment shall be made, and making an appointment, are the exercises of two different and distinct powers: the one prescribing how an act shall be done, being legislative; and the other-doing the act-being administrative.

3. The constitutional provision which authorizes the general assembly to prescribe by law how an appointment shall be made, by express provision and condition withholds from the general assembly all appointing power.

4. Conceding that the general assembly may provide by law for the creation *of an office in the form of a board clothed with the power of select- [547 ing, appointing, and removing all officers, and filling all vacancies not otherwise provided for by the constitution, in all offices; and conceding an unlimited power in the general assembly to pass laws providing for the creation of offices or boards in such cases, even permanently or for life (questions which are not before us), yet the general assembly can not exercise any appointing power to fill such boards or offices.

5. The exercise of the power of appointment and removal of state officers, and the filling of vacancies which may occur in state offices, is a high public:

The State, ex rel. Attorney-General, v. Kennon et al.

function and trust, and not a private, or casual, or incidental agency; and the officers of a board so created by statute, to exercise these public functions, are vested with official state power, and hold and exercise a public franchise and office.

6. Emolument is a usual but not a necessary element to constitute an office. Authority and power relating to the public interests, conferred by statute, and which may be vested in a board or individuals by election or the appointing power of the state, create an office. Whatever less than this may create an office, it is unnecessary to determine.

7. The statutes under consideration which provide for the creation of a board, authorizing it to appoint commissioners of the state-house and the directors of the penitentiary of the state, and fill all vacancies which might occur in the offices of directors or state-house commissioners, and authorizing such board, or a majority, to remove any director of the penitentiary for causes specified, or which might by the board be deemed sufficient, created offices; and conceding that the general assembly could provide for the creation of such board and offices, yet the general assembly could not exercise the power of appointing the officers of such board, without exercising "appointing power," which is forbidden by the constitution.

INFORMATION, in the nature of quo warranto.

On the 29th day of April, 1858, Christopher P. Wolcott, attorneygeneral, filed in the Supreme Court of Ohio an information in the nature of quo warranto, giving the said court to understand:

"That William Kennon, and William B. Caldwell, and Asahel Medbery, for the space of three weeks now last past and more, have held and assumed to exercise, and yet do claim to have, hold, assume to exercise and enjoy, without any lawful grant, warrant, or right whatsoever, the liberties, authorities, privileges, and franchises, following, that is to say:

"First. To appoint three persons, who shall compose a board denominated the commissioners of the state - house,' and under 548] *whose direction and authority the further prosecution of the work, in the completion of the new state-house, of and belonging to the State of Ohio, shall be continued and carried on.

"Second. To appoint three directors of the Ohio penitentiaryone for the term of one year, one for the term of two years, and one for the term of three years-the said office of director being a public office of great trust and responsibility, within and of the State of Ohio.

"All which liberties, authorities, privileges, and franchises, the said William Kennon, the said William B. Caldwell, and the said Asahel Medbery, upon the State of Ohio, during all the time afore

The State, ex rel. Attorney-General, v. Kennon et al.

said, have usurped and still do usurp, to wit, at the city of Columbus, in the county of Franklin, and state aforesaid, to the damage and prejudice of the State of Ohio, and against its dignity."

Whereupon the attorney-general "prays the consideration of the court here in the premises, and that due process of law may be awarded against the said William Kennon, the said William B. Caldwell, and the said Asahel Medbery, in this behalf, so that they be made to answer to the State of Ohio by what warrant they claim to have, hold, assume to exercise, and enjoy the several liberties, privileges, authorities, and franchises herein above mentioned."

To the information the defendants filed a general demurrer.

A. G. Thurman and N. H. Swayne, in support of the demurrer, citied 55 O. L. 122, 136, and argued the following points:

I. "But while the right and duty of interference in a proper case, are thus undeniably clear, the principles by which a court should be guided, in such an inquiry, are equally clear, both upon principle and authority. It is never to be forgotten, that the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority, and clear incompatibility between the constitution and the law appear, that the judicial power can refuse to execute it. Such interferences can never be permitted in a doubtful case." C., W. & Z. R. R. Co. v. Comm'rs of Clinton Co., 1 Ohio St. 82-84; Hylton *v. U. S., 3 Dallas, 171; Cooper v. Telfair, [519 4 Id. 14; Fletcher v. Peck, 8 Cranch, 87; Adams v. Howe, 14 Mass. 345; Wellington v. Petitioners, etc., 16 Pick. 95; Commonwealth v. McWilliams, 11 Penn. St. 70; Louisville v. Hiatt, 2 Monroe, 178; Lexington v. McQuillan's heirs, 9 Dana, 514; Bank of the State v. Cooper et al., 2 Yerg. 623.

II. Of the State-house.

1. The election or appointment of state-house commissioners, not being specifically provided for by the constitution, "shall be made in such manner as may be directed by law," with this limitation, that they shall not be appointed by the general assembly. Const.. art. 2, sec. 27; Swan's Stat. 15.

2. The manner of appointment is, therefore, to be prescribed by the general assembly, the law-making power, and, as it can not exercise the appointing power itself, it must devolve it upon some man or body of men; otherwise there could be no appointment.

3. This power of devolution is unlimited. There is not a word