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.
ACKNOWLEDGMENT-

S. and his wife A. jointly executed and acknowledged, in 1815, a deed of con-
veyance for lands of A., but the certificate of the officer does not show a
separate examination of A. In 1829, the coverture still subsisting, A. sep-
arately, and upon proper examination, again acknowledged the deed before
a different officer, both the certificates being on the same sheet of paper
with the deed. Held, that these acknowledgments were sufficient to per-
fect the conveyance. Lessee of Newell et al. v. Anderson, 12.
ACQUIESCENCE. See MISTAKE; ESTOPPEL, 2.

ACTION-

1. Where a married woman, domiciled in Ohio, dies intestate, leaving children,
and her surviving husband afterward obtains letters of administration upon
her estate, from the orphans' court of Pennsylvania, and by means thereof
acquires possession of her personalty in that state, and there files his ac-
counts and vouchers for settlement in the proper court, which are referred
to an auditor, and a report made thereon, to which the children and heirs
of the deceased appear and file exceptions, a suit can not be maintained
in this state, by such children and heirs of the intestate, for distribution
of the money so held by the administrator, while the settlement account
and exceptions are pending, and the amount for distribution is undeter-
mined. Adams v. Adams, 83.

2. The board of commissioners of a county are not liable, in their quasi cor-
porate capacity, either by statute or at common law, to an action for dam-
ages for injury resulting to a private party by their negligence in the
discharge of their official functions. The Comm'rs of Brown Co. v. Butt, 2
Ohio, 348, overruled. Comm'rs of Hamilton Co, v. Mighels, 109.

3. Rench agreed to build a storehouse for Brown that would bear the weight
of six hundred tons of iron, etc. Rench, after partly finishing the build-
ing, of materials, etc., that would not bear that weight, died. Brown after-
ward put in the storehouse less than six hundred tons, and the walls fell
and injured the plaintiff's building, for which this action was brought against
Rench's administrator. Held, that as no cause of action accrued in the
premises to the plaintiff against Rench in his lifetime, there was no cause
of action to survive against his administrator, under section 398 of the
code. M. E. Church of Dayton v. Rench's Adm'r, 369.

4. Under the statute of March 25, 1851, entitled " an act requiring compen-
sation for causing death by wrongful act, neglect, or default," an action
may be maintained by the administrator of the estate of a deceased person
for the benefit of the next of kin of the deceased, though he leave no widow
or children, and though the petition do not contain a statement of special
circumstances rendering the death a pecuniary injury to them. Such special
circumstances can affect only the amount of the recovery. Lyons' Adm'r
v. Cleveland and Toledo. R. R. Co. 336.

See PAUPER, 4, 5; MORTGAGE, 1; WATER-CRAft, 3.
ADMINISTRATORS AND EXECUTORS—

1. An administrator is not chargeable with interest on money which comes
into his hands, as the representative of a deceased person, unless he employ

Admissions-Assignment.

ADMINISTRATORS AND EXECUTORS-Continued.

it in his own business, derive some benefit from the loan of it, or is guilty
of unreasonable and unnecessary delay in the settlement of his accounts
with the court. Cooch v. Irwin, 22.

2. An executor is not bound to assume the burden of the defense of a contest
of the will by the heirs at law, but may properly throw the same upon the
legatees or devisees. Andrews' Ex'rs v. His Adm'rs, 143.

3. The executor is not entitled, when the will is adjudged invalid, to charge
the estate, in his settlement account, with the expense of maintaining such
defense. Ib.

See ACTION, 1, 3, 4.

ADMISSIONS. See EVIDENCE, 6, 7.

ADVANCEMENTS-

1. The statutory provision as to advancements in the descent and distribution
of estates, can have no just application, in a case where it is apparent that
the testator, who, by his will, had distributed property in different amounts
among his children, with the manifest intention of disposing of all his es-
tate, unexpectedly, by the omission of a residuary clause in his will, died
intestate as to a residuum of his estate. Needles' Ex'r v. Needles et
al. 422.

2. Where a father, on making an advancement to one of his sons, took from
the son a receipt for the amount advanced, acknowledging the same to be
in full of all claims the son could have against his father's estate after his
death, as one of his heirs, and stipulating not to set up any such claim, as
heir, etc., such agreement can impose no binding obligation, inasmuch as
the estate of a deceased person must pass, either by devise or descent, and
the operation of the laws of the state, in this respect, can not be defeated
by any kind of executory contracts, made to control the distribution of a
man's estate after his decease. Ib. 433.

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
of referees under the code; and the case stands for trial as if no reference
had been made below. Lawson v. Bissell, 129.

2. An order of a court of common pleas, that a case be stricken from its
docket for want of service, and for the payment of costs, is not a final judg-
ment from which an appeal lies to the district court, but is a final order for
error in which a petition in error is the proper remedy. Evans v. Iles, 233.
APPEARANCE-

A party, by pleading to an action, enters his appearance therein. Evans v.
Hles, 233.

APPOINTING TO OFFICE. See CONSTITUTIONAL LAW, 9.

APPROPRIATION OF LANDS. See CONSTITUTIONAL LAW, 2; PRACTICE, 16.
ARREST OF JUDGMENT. See PRACTICE, 10.

ASSIGNMENT-

1. A. W., in contemplation of insolvency, and with the design to prefer a por-
tion of his creditors to the exclusion of others, by written agreement, sold
and transferred to I. W. a stock of goods, together with notes and book ac-
counts, and also conveyed by deed certain real estate, amounting in the
aggregate to about $30,000 in value, being the principal portion of the
property owned by A. W.; in consideration whereof, the said I. W. agreed
to assume and pay off a number of debts, owing by A. W. to sundry cred-
itors, and upon which I. W. stood bound as surety for A. W., amounting
in the aggregate to over $20,000, and also to assume and pay in full the