Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1856-03-14

duced into an amendment of the consti
tuition, If it be said that it is explana
tory Of the amendment. then we objec
to it as clearly an usurpation by the leg
islature of judicial power, and it is as We
apprehend, the first instance in this free
country of construction Of the constitu.
! ton put forth and established by legis-
lative enactment. Under our system o.
government it is for the people to make
the constitution, for the legislature to
make the laws. and the province Of the
judiciary is to declare what is the mean.
ing and construction of boih the consti-
tuition and the laws; when either Of these
departments of powcrle its province
and invades that of the ether, confusion
and wrong are sure to- result. The words
used arc these. land until said Offices shall
be filled by election under and by virtue
of said amendments. the power of the
governor and council in relation thereto
will remain unchanged 1t is clearly a
construction of the constitu'i n settling
by legislation authority, aquestion which
by our constitution and laws the supreme
court only is competent to settle. We
protest against it as an innovation dan
gerous to constitutional liberty
The minority report then closes with
the following conclusions
1--WE come now to the great, and in
point of Importance the principal question
which is: when do these amendments go
into effect, The answer is : when all
that the constitution requires has been
accomplished. The constitution requires
that the amendments be properly snbmit
ted to the people, voted on. and adopted
by majority and that the fact of a ma
jority having s. voted should be made to
appear. The majority of the committee,
after careful scrutiny, have been COM
pcllcd to admit that the amendments were
properly submitted, had been voted on,
and adopted by the required majority
The provision. "ifit shall appear" is their
last hope. How is it to appear to
whom is it to appear. The constitution
is silent on these questions. The major
ity say it must appear to the legislature,
nut for this conclusion they fail to pro-
ducc any authority in the constitution or
the laws. In other cases when the con-
stitution requires thing to be done, but
is silent as to the manner in which it is
to be done, the custom has been for the
legislature to provide the manner, or as
the majority express it, "the ho,c." Has
that been done in the present case: We
think it has. The resolves provide that
the votes shall be returned and counted
by the governor and council and report
thereof made to the Legislature. This is
the mode provided by law for it to appear
how The majority of the people voted
May not the people know how the votes
were given as well from report of the
council as of the lcgislatures But it is
said the council have no authority to en-
quire whether the provisions oflaw in send
ing out the resolves and blanks. and in
the returns of votes have been complied
with. We do not see why they may not
have as much authority in these matters
sthe legislature would have if the returns
had be.n made to that body.
1t is the duty of the governor and coun-
ell to ascertain how the votes have been
given, and as a necessary incident they
have the power to do all that is necessary
to that purpose.
1t seems to US then, that according to
the legitimate conclusion from the prin-
ciples adopted by the majority Of the COM
mittec, all that was needed to make val
id amendment of the constitution, was
done and accomplished before the present
executive was qualified and entered upon
his duties. The resolves were properly
submitted and voted on, and it appears
that majority are in favorof the amend
ment The council wer, appointed to
ascertain that fact They did so, and
communicated it to the Legislature at the
earliest practical moment. 1t then APP
peared in due form of law that "a ma or
ity of the inhabitants voting on the ques-
ton was in favor OF the amendment, and
the necessary conclusion follows that lit
had become part Of the constitution.
What effect had the amendment upon
the appointing power: It's admitted by
the majority report, that when the con-
stitulion is amended the appointing pow
er is gone, but they hope to preserve it
Tor time. by inserting as we insist with
out authority, a saving clause, retaining
it till after the elections take place. Il
it was continued without this clause why
is it inserted? If this clause is inserted
without authority. as we insist it is, it
can have no effect to prolong the power
of the executive over the appointment,
and that power was at an end before the
present executive was qualified. We
are pleased to learn by their report that
the majority agree with us in the opinion
that this is a matter for judicial decision,
Since the power of the court to decide
this question is fully admitted, its duty
to do so when presented follows as mat
ter of course, and we trust that no more
will be heard of the charge of judicial
usurpation on the part OF Judges. who
when called upon in the exercise Of thcll
judicial functions to settle this question
have discharged their duty
The length Of these extracts forbid an,
remarks Of ours. Tho minority report is al
Il 4..I~