Eastern times., 1856-04-24
DECISION or THE GOVERNOR
On the Address for the removal Of Hon.
Woodbury. Davis,


Two-thirds Of both branches of the Legisla-
sure on the seventeensh Of March. 1856. voted
to propose amendments TO the Constitution, and
resolutions were passed presenting the amend
ments, and providing for the submission of the
several questi ms to the people, II has been
contended, that under these resolves. the Gov
ernor and Council Of last year were authorized
to declare that the. proposed amendments, in
case there was majority Of votes in favor Of
them, had become part of the Constitution !;
and acting upon that opinion they did make
such declaration in November last.
That such was not the intention Of the Legis-
lature is manifest from the conclusion of the
first resolve, which is as follows; "And in all
cases of elections provided for in this resolve,
the first elections shall take place on the days
and times herein prescribed, accruing next after
The amendment providing for such elections
shall have been declared by the Legislature to
have been adopted as q part of the Constitu-
tion.', -
This resolve provides in express terms, for
such declaration to be made by the Legislature.
And no elections could take place until the
Legislature had acted on the subject, and had
declared the amendments to have been adopted
as part Of the Constitution.
1t is therefore very clear. that it was not the
intention OF the Legislature to leave the making
of this declaration with the Governor and
Council. 1t is true that this part of the re-
solves provides for the time when the elections
shall take place, but that does not prevent il
from being examined in connection with the
rest Of the resolves to ascertain the sense and
meaning of the whole enactment.
The second resolve makes provision for the
return of the votes.
And lists shall be made out Of the votes by
the Aldermen, Selectmen and Assessors, and
Clerks of the several cities, towns and planta-
tions. and returned TO the office of the Secretary
of State, in the same manner as votes for Sena-
tors, and the Governor and Council shall count
the same and make return thereof to the next
Legislature, and if majority Of the votes are
in favor of any of said amendments, the Con-
stitution shall be amen led accordingly"
The whole duty of the Governor and Council
was to count the votes, and return them to the
Legislature. They had no authority to exam
inc into the preliminary facts, and see whether
there had been a compliance with the several
requisites for change of the Constitution. nor to
determine whether the Selectmen of the towns
or the people had been properly notified, oil
whether there had been any frauds in voting
They were simply to count the votes and return
them to the Legislature. And when the Leg
islature had received them. it could examine in
to all the preliminary steps necessary to be
taken by the Constitution, to effect an amend
ment and make the conclusion known by some
Legislative declaration.
Would it be the duty Of the Legislature after
the reception of the votes from the Governor
and Council, TO send them back again for then
to declare the Constitution amendeds
The order in which the series of acts are ar.
ranged in the resolve before mentioned. shows
clearly what was to be done by the Governor
and Council, and oy the Legislature.
The Legislature might adopt the count of the
Governor and Council, or count them again
and if both counts agreed, it would be test Of
accuracy. There was no necessity to provide
that the votes should be counted by the Gov
ernor and Council, and the provision that i
should be done gave validity to the transac
ton. The Legislature thought fit to make II
and at the same time to provide, that the votes
after they had been counted by the Governo
and Council should be returned to the Legisla
ture.
There is no mode pointed out in the Consti
tuition Of making a return Of the votes Of tn
people in relation to a change of it. By tht
last clause of Art. 10, Sec. 4, it is provided,
And if it shall appear that majority of tn
inhabitants voting on the question are in favo
Of such amendment, it shall become part 0
this Constitution"
1t is manifest, that this appearance, as ex
pressed in the Constitution, must be to the Leg
islature. That is the law making power. it
members represent the people, and no chang
of the Constitution can be completely effected
unless it does so appear to the Legislature, an
| the fact of that appearance is made known b.
some Legislative declaration. Before chang
| can be made in the Constitution, the seyera
acts prescribed in il must be done, the last {
which is the appearance Of a majority voting o
the question.
The Legislature can only speak by its vote.
and by some vote. il must express the existenc
of the fact. that it does appear that there is
majority in favor of the amendment, otherwis
no amendment can be regarded as part of tn
Constitution. The expression "if 1t shall az
pear, &c.," shows that without such develop
ment an amendment could not be consum
mated. Whether the Legislature has the pow
er to delegate to any man or body OF men, tn
authority to perform the act of ascertaining th
appearance Of the majority in favor of II
amendment, and declaring it, it is not necessar
to enquire, for by fair construction of the re
solves of the seventeenth of March, 1855,
does not appear to have been the purpose of Il
Legislature 10 make such delegation. Wht
the Sheriffs of Cumberland and other Count
were appointed, the Legislature had made I
declaration of change of the Constitution, a
fecting tnat part Oh IL WHICH Cohtdihs thS al
pointing power. Those appointments wei
therefore made in strict conformity to the Con
s,itution, as it had existed for thirty-six year
But if it had appeared to the Legislature thu
there was a ma jerity voting on the amendment
and corresponding declaration had been mad
or if the effect contended for could have bee
given to the action of the Governor and Coul
ell, the question arises whether the appointlI
power would have been taken away before Il
new provisions had gone into actual operatio
The resolves before mentioned are silent {
this subject, ard so are the amendments then
selves, and it must be determined by Just in
plication of the presumed intention arising fro
the resolves, and the nature and character
} the amendments proposed. One Of them pr
T vides that "Sheriffs shall be elected by the pc
pie of their respective counties. by plurai
of the votes given i'll on the second Monday
September and shall hold their offices for tv
years from the first day of January next aft
their election, &C." Under this provision, She
ifs cannot be chosen until next September, ar
cannot act as such until next january.
Did the Legislature. in providing this ament
ment. and the people in voting upon it. inter
to put an end TO that part of the Constitute
in relation 10 the appointment of Sheritfs,
soon as the Constitution was declared to
amended, and before these officers could
chosen and qualified. and authorized to act vi
der the amendment No such presumptiS
can reasonably arise. and the intention that
old provision was to remain until there cou
ho a practical onerafinn under the new ACCORD