The Union and eastern journal. [volume] (Biddeford [Me.]) 1854-1858, 1856-01-25
The Amendments Of tho Constitution.
8. CouRr. CrxBKRL,Sp Co., JAN. TrRn,

ne cOmml<lOu VI TIC iOfnici a, t.sNs
ruary 2lst, 1854; and that Of the latter
Jan. 18th, 1856. The former has othciated
in Court until this sixth day Of the term
and the latter now applies TO the Court 10
be recognized in his Official capacity. upon
such application the Court viii assume no
authority 10 determine which OF the parties
Il. under the constitution, the sheriff OF the
county; nor will the court interpose be
tween the claimants, except 10 tar Us It may
be necessary for its own protection, and the
Transaction of its own business. But as Tor
this purpose, il has become necessary for
this Court to express an opinion upon the
question of their rights, have given the
subject such consideration as the very briei
space Of time, and the pressure OF other mat
tiers, have permitted.
By several resolves Of the legislature, APP
proved March 18th, 1855, certain proposed
amendments TO the constitution were sub
mitted to the people. BY the adoption OF
these amendments, the Office Of sheriff, with
Others, would be made elective. The people
have voted upon the questions, the Governor
and Council have counted the returns which
were transmitted to the Office of the Secreta-
nv Of State, and il is known that a majority
Of the inhabitants voting on the questions
were in favor of the amendments. The Gov
ernor and Council have also made return oil
the vote TO the legislature now in session,
though il may well be doubted II the Court
can take judicial notice Of this fact.
II has been the practice Of the legislature,
whenever amendments to the constitution
have been adopted, TO pas special resolve,
declantory Of that fact. And il is said that
these amendments will not be in force until
that shall be done. On the other hand il is
objected that this cannot be 30, because, IL
50, the legislature would have the power, by
refusing TO pass any such resolve, for u time,
20 defeat an amendment after the people
have adopted il. This reason for the OBJ
lection is not satisfactory. The Governor
end Council might refuse to count the re-
turns, and yet the consequences which
would result from such misconduct are no
evidence that action on their part is not nee
essary. The whole theory of u representa-
tive government is based upon the presump-
ton that those who are in official stations
will be faithful to the trust committed to
them. To deny that power is given, because
il might be abused, Is to deny all delegated
power. But the Eallaey Of the objection
does not prove the the truth OF the propO-
sition. II becomes necessary, therefore, to
examine the various questions which the
subject presents.
4. Are the amendments Of the constitution
moe IN IN force?
I This question is TO be determined by the
provisions Of the constitution, and whatever
action of the legislature, IL any, is necessary
to carry these provisions into effect. by
Article ", section 4, the following proceed
ings are necessary before an amendment can
be in force :-Q0 The Legislature, by u
vote Of two thirds of both Houses, must
propose the amendment ,-(2) "resolu-
ton must be passed." and sent to the sever
al towns, Of which the inhabitants may
have due notice, that they may "giye in
their votes on the question" which is sub
mitted-(3) and the question must, in some
way, be determined, whether "a majority of
the inhabitants voting ON the question are
in favor of such amendment" When these
three provisions have been complied with,
the amendment, if adopted is in force, and
"becomes part Of the constitution"
In the case now under consideration there
is no controversy about the first, or the sec
ond. But the constitution itself, makes no
provision for the manner in which the third
point is to be settled. Ii is manifest that il
was intended TO leave il to the legislature,
whenever amendments should be proposed,
to make whatever provision might be thought
best to determine whether majority of the
n. -, f,,n. Of than. "a
whom, then, by the resolves of March 18th,
1855, is this trust committed?
Much Of the difference of opinion, has
arisen, doubt not, by giving to the word
"appcar," in the section above named, u
meaning il was not intended TO convey. Its
most common Specification is-tO become
kn0irn, and therefore many have supposed
that BY the proyision-.'if it shall aPP,Gr
that majority of the inhabitants voting on
the question, are in favor of such amend
ment, il shall become part Of this eonstitu-
tion''-it was designed that the fact must
be announced, = published - before the
amendment should take effect.
This cannot be 50. Whatever this provis-
ion requires is essential to perfect the amend
ment, and must precede il in point OF time;
while the publication of il must, from its
very nature, follow il. TheworI, therefore,
refers to the adjudication, by whatever tri-
bunal the resolve authorizes TO act, and It's
determination Of the question whether ma
jority Of the inhabitants voting ON the ques-
ton have voted in favor Of the amendment.
BY examining the second resolve il will be
seen that il was made the duty of "the Gov
ernor and Council" Ia determine this qucs-
ton. IL is true, they were required to make
u return of their doings 10 the legislature
IL was necessary that such official notice
should be given, because, by the last clause
Of the first resolve. il was made the duty Of
the legislature, If the amendments should be-
adopted. 10 make declaration of that fact.
But there is no provision in the resolves
requiring the legislature to examine or count
the returns. This was to be done by the
Governor and Council, not as individuals,
but in their Official capacity, representing
therein the people Of the State. To them
was committed the trust Of adjudicating and
deciding the question, upon the evidence To
be furnished by the returns, whether the
had been adopted,-and their
decision was 10 be final. And when they
had counted the returns, and decided upon
the vote, then ait appeared that majority
VI the inhabitants voting on the questions
were in favor of the amendments" and then
the amendments became part Of the con-
stitution." Their act was the oct Of tho
people, who were bound TO take notice Of il;
and thenecforth their rights were To be deter
mined by il. Their return to the legisla-
ture, and the action Of that body thereupon,
were designed for other objects and by their
action, or by their neglect, the validity Of
the amendments can in no way BE- affected.
.. The amendments opcmting upon the
Office Of Sheriff are two in number. In ar
ticle v, section 4, the Governor has hitherto
been empowered to nominate, and with
the advice and consent Of the Council, to
oppoint" persons TO fill various Offices, among
which was that Of ..Sheriff." This, BY the
has been ''strieken out" The
appointing power for this Office no longer rs
held by the executive, except under the
in which il is restricted to cascs
Of "vacancy, occurring by death, rcsigna-
ton or Otherwise"
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