The State, ex rel. Attorney-General, v. Kennon et al. case before us. But it has not, perhaps, the usual merit of a false position-plausibility. Let us examine it. If it be conceded that the general assembly could, or if it be conceded that it could not, annex to an existing office, such as the office of governor, with the consent of the senate, the power of appointing directors of the penitentiary and state-house commissioners, it would not in any manner touch the question before us; for the laws we are now considering, instead of annexing to any existing office the power of appointment, etc., have, in the first place, provided for a board of appointment, clothed with public functions, and without providing for the manner in which the offices of this board should be filled, have directly selected and appointed the members of the board, thereby exercising, in respect to the board, the appointing power. Whether, therefore, there be any difference between the general assembly creating an office and appointing the incumbent thereof, or annexing the power of appointment to an office already existing and filled, has no application whatever to the case before us. But it may be proper to inquire whether there is not a difference *in this respect; that is, whether the general assembly in fact exer572] cise the appointing power, by annexing to an office already existing and filled, the power of making appointments and filling vacancies. If the general assembly annex to an office already existing and filled additional powers and duties, upon what ground can it be claimed that this is the exercise by the general assembly of the appointing power? Certainly upon this only, that the general assembly has enlarged or added to the powers and duties of an existing office. But this is really absurd; for, if adding to the duties or powers of existing offices is an exercise of the appointing power, then every new duty required, or power conferred upon any state, county, or township officer, must be deemed the exercise by the general assembly of the appointing power, and forbidden by the constitution. But these fallacious positions arise out of a misapprehension of what is meant by the exercise of the appointing power. An office, until filled, is an impersonal thing-an incorporeal hereditament. It is filled by the exercise of the appointing power, and when filled, the office and officer both exist. The office itself may by law be enlarged in its powers, or new duties enjoined, without touching The State, ex rel. Attorney-General, v. Kennon et al. the appointment or tenure of office of the incumbent or his successor. It would therefore seem highly probable, although the question is not before us, that the general assembly could, without displacing or appointing a governor of Ohio, annex to the office of governor the power of appointing directors of the penitentiary, or the duty of performing any other legitimate executive function. If the general assembly conferred upon the incumbent of the gubernatorial chair official public powers as an individual, so that he would continue to exercise the powers thus conferred, whether he continued to hold the office of governor or not, it would seem quite manifest, to my mind, that the general assembly created an office in such case, and exercised the appointing power. But these questions are not before us, except to comment upon with a view to aid those who seem to be unable to distinguish between an office and an officer-between official powers conferred by law *upon [573 and annexed to an office, and the individual incumbent or officer. The whole case is within a nutshell. The board was vested with official functions, and could not, therefore, be appointed by the general assembly. Although it is clear, beyond any question or doubt, in our minds, that these laws are unconstitutional and void, it is proper to add, for the benefit of those who suppose that a board like this may be appointed by the general assembly, that the public functions of this board are not confined, simply, to the appointment of offices and filling vacancies; but they sit as a public tribunal, upon the official conduct of state officers, and, for causes stated in the law constituting the board, may remove the directors of the penitentiary. It is not a board created to fulfill only the requirements of the constitution in regard to appointments, but is vested with public functions which have no reference to appointments or the filling of vacancies; so that, if the general assembly had power to appoint officers to make appointments, we have heard no argument or view which would authorize the general assembly to appoint a board clothed with the power to supervise the official conduct and remove state officers. It is proper to add further that the third section of article seven of the constitution gives the governor the power of filling vacancies in the office of directors of the penitentiary; but one of the laws under consideration, notwithstanding, confers this power upon the board of appointment The State, ex rel. Attorney-General, v. Kennon et al. The questions before us have been so far misapprehended, that it is necessary to say distinctly, that we do not decide whether a board of appointment, such as these laws create, may or may not be constitutionally created; for it is unnecessary to decide it. But we hold that the general assembly can not appoint the officers of such a board. Whether the general assembly can annex the power of appointment of the directors of the penitentiary and state-house commissioners to the office of governor, or to any other existing office or board, we do not decide, simply because the question is not before us. BARTLEY C. J., dissented. SCOTT and SUTLIFF, JJ., concurred. 518 INDEX. ABANDONMENT. See LEAse, 2. S. and his wife A. jointly executed and acknowledged, in 1815, a deed of con- ACTION- 1. Where a married woman, domiciled in Ohio, dies intestate, leaving children, 2. The board of commissioners of a county are not liable, in their quasi cor- 3. Rench agreed to build a storehouse for Brown that would bear the weight 4. Under the statute of March 25, 1851, entitled " an act requiring compen- See PAUPER, 4, 5; MORTGAGE, 1; WATER-CRAft, 3. 1. An administrator is not chargeable with interest on money which comes Admissions-Assignment. ADMINISTRATORS AND EXECUTORS-Continued. it in his own business, derive some benefit from the loan of it, or is guilty 2. An executor is not bound to assume the burden of the defense of a contest 3. The executor is not entitled, when the will is adjudged invalid, to charge See ACTION, 1, 3, 4. ADMISSIONS. See EVIDENCE, 6, 7. ADVANCEMENTS- 1. The statutory provision as to advancements in the descent and distribution 2. Where a father, on making an advancement to one of his sons, took from ADVERSE POSSESSION. See POSSESSION, 3. AGENT. See PRINCIPAL AND AGENT; HUSBAND AND WIFE, 4, 5. ALLEGATA ET PROBATA. See VARIANCE; USURY, 2. APPEAL- 1. An appeal from the common pleas to the district court vacates the report 2. An order of a court of common pleas, that a case be stricken from its A party, by pleading to an action, enters his appearance therein. Evans v. APPOINTING TO OFFICE. See CONSTITUTIONAL LAW, 9. APPROPRIATION OF LANDS. See CONSTITUTIONAL LAW, 2; PRACTICE, 16. ASSIGNMENT- 1. A. W., in contemplation of insolvency, and with the design to prefer a por- |