Blue v. Smith
| Decision Date | 11 November 1911 |
| Citation | 69 W.Va. 761 |
| Parties | Blue, State Tax Commissioner, v. Smith, Sheriff. |
| Court | West Virginia Supreme Court |
visions.
The legislature had the power to create the office of State Tax Commissioner and said office is not in violation of the state Constitution, (p. 762).
Said office is subordinate in the executive department of the state, and the power and duties thereof do not conflict with those of any office created by the state Constitution, (p. 762).
Delegation of Legislative Power.
Chapter 33 of Acts 1908, providing for a uniform system of public accounting, and appointing the State Tax Commissioner chief inspector and supervisor of public offices, and authorizing him to prescribe forms for the keeping of accounts of public funds, and, after having such forms approved by the board of public works, making it the duty of every public officer and employee to keep the accounts of his office according to such prescribed form, does not empower such chief inspector to perform a legislative function. Said act is not in conflict with either the letter, or the spirit, of the Constitution, (p. 763).
Original proceeding by Fred 0. Blue, State Tax Commissioner, for mandamus to S. P. Smith, Sheriff of Kanawha County. Peremptory writ awarded.
L. S. Echols, E. R. Kingsley and Fred 0. Blue, for petitioner.
W. G. Mathews, for respondent.
Williams, President:
This is an original mandamus proceeding of Fred 0. Blue, State Tax Commissioner, and ex officio Chief Inspector and Supervisor of Public Offices, against S. P. Smith, sheriff of Kanawha county, to compel him to keep his accounts of the public funds according to certain forms of public accounting, prescribed by said chief inspector for the use of the sheriffs of all the counties of the state, and approved by the board of public works on the 27th of May, and on the 8th of July, 1910.
On the filing of the petition an alternative writ was issued, to which respondent appeared and demurred. He also moved to quash said writ, and at the same time made return thereto. To sustain the demurrer, and motion to quash, it is insisted that the office of State Tax Commissioner was created in violation of the state Constitution, and is, therefore, not a lawful office, and confers no power on the incumbent.
The legislature has the inherent power to create the office, in our opinion, unless there is an express, or a necessarily implied prohibition upon it to do so, contained in the Constitution. Counsel for respondent concedes this to be the law. Looking to that solemn document, we find that there is certainly no such inhibition expressed, and instead of finding any implied restriction upon the powrer of the legislature to create offices, we find that see. 8 of article IV expressly authorizes that body, even if such authorization were thought to be necessary, to prescribe by general law, the terms of office, powers, duties and compensation of all public officers and agents and the manner in which they shall be elected, appointed and removed, "in cases not provided for in this Constitution."
Section 8 of article VII prohibits the legislature from appointing, or electing any officers, (but not from creating offices,) and confers upon the governor the right to nominate, and by, and with, the advice and consent of the senate, to appoint, not only officers mentioned in the Constitution, the manner of whose election is not therein provided for, but also, such i officers as "shall be created by law!' This is certainly as clear and express recognition of the right of the legislature to create, by law, other offices than those named in the Constitution, as it is a vesting of power in the governor, acting with the advice of the senate to fill such offices by appointment, after they are created. The legislature, of course, cannot create offices which will conflict with, or curtail the constitutional powers of, any of the offices provided for by the Constitution. But the office of State Tax Commissioner does not do so. That office was created, as an aid to the executive department in the administration of the laws respecting the state's revenues. The governor has the power, together with the senate, to fill it, and the governor alone has power to declare it vacant. The State Tax Commissioner is a subordinate office in the executive department, the incumbent may be removed by the chief executive at his will. His powers and duties are purely ministerial, and do not in any manner conflict with those of any other office created by the Constitution. Our conclusion is that the legislature has the power to create the office of State Tax Commissioner, and that the office is lawfully constituted.
It is not necessary that I should enter upon an extended discussion of this question, because we have today decided the same point, raised in the case of Blue, State Tax Commissioner, v. Tetrick, Clerk, and I am content to refer to the very able discussion of the subject in the opinion prepared by Judge Brannon in that case. The...
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