The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1875-07-10
THE LIQUOR AGENCY.
Judge Knight Decides Against the Right
of Nzr. Weeks to Sell the Cfty,s E.iquor
An Appeal Taken.

In the Municipal Court yesterday mornin.
Judge Knight rendered his decision in til
case of State vs.. William Weeks, on complain
for single sale, adverse to Mr.. Weeks right
act as liquor agent. An appeal was taken an
the case goes up to the Superior Court. Tb
following is the opinion:
The complaint of State vs. William Week
for single sale is made to test the validity {
the claim of the respondent to act as Cit
Liquor Agent. The records show that on tn
Sd of May the Mayor nominated Horace
Bradbury to said position, and the Alderme
refused, 5 to 2, to confirm; that subsequent
ly, upon motion of one of the Aldermen,
was voted, by the same majority, that the re
spondent be appointed such agent, agains
which action the Mayor protested, as also t.
the subsequent approval of the bond and tn
issuing of the certificate. claiming the RICH
to make the appointment and entering hi
claim and protest upon the records.
The twenty sixth section of chapter TWEEN
ty seven of the Revised Statutes, as amend
ed, which conters the authority to appoint
liquor agent, reads as follows:
CT. "The seectmen of any town, or Mayor and Al
some suitable person as the agent of said town O
city to sell liquors in conformity to law" etc.
The making of city officers, outside o
those chosen directly by the people, is b,
election by the City Council and appointment
by the Mayor and Aldermen; and concernin.
the latter class 1 quote the last clause o
sec. 81 of chap. of the Revised Statutes:
SIN all cases where appointments to office ar,
directed or authorized to be made by the Mayor
and Aldermen of cities, they may be made by the
Mayor by and with the advice and consent of the
the Mayor"
Previous to 1871 this section read "shalr
instead of "may," and what was then exclu-
sive authority given to the Mayor is now
claimed, by the counsel for the defence, to
give concurrent right and authority to the
Mayor and Aldermen. "They may move in
the order in which they start" says the coun-
sci for the defence, substantially making il
simply question as to who acts or speaks
first. / cannot come to this belief In the
first place the word "may'' when used in pre-
scribing public duty, is not a personal
licence to do or not to do thing; but is
plainly directory, according to well known
construction of statute law-it being only
permissive when it relates to personal bene-
fit or convenience. But even if it be only
permissive, and not directory, it cannot pass
authority from the Mayor to anybody else
except by waiver; much less can it be wrest-
ed from him in disregard of his prompt
claim and exercise of power in the appoint
ment first made, and in utter defiance of his
persistent protest afterwards. / think this
general view is not only borne out by the
statute and the whole spirit and letter of the
charter, but is in accordance with the
philosophy of the whole law on the subject.
cannot believe it was ever intended to make
such an appointment to belong equally to
two authorities, or to leave it in a cloud of
doubt. But even if it were thus obscured
every rule of law and logic would lie in favor
of the Mayor, for the Aldermen's action is
based on a presumption in favor of
the inferior, and the degrading
of the superior authority. And
the whole line of modern discussion and
decision is in support of the fullest executive
power of the Mayors Office. There is no hint
in the law that he is merely member of the
Board of Mayor and Aldermen, for he only
presides for convenience and by positi We
prohibition has not even vote, except in
case of necessity. His duties are plainly, no
toriously, and only executive, and are to be
upheld upon the broadcast grounds of public
policy. In support of this doctrine quote
Dillon on Municipal Law volume 1, Page 80,
and the references, notes and decisions there
appended and approved. This author of the
only standard work in the country, after
urging an increase of power and responsible
ity in this office, says:
tsIf the Office be clothed with dignity and real
authority; if the Mayor be invested with the veto
power; if he shall have the sole right to appoint
and the unrestrained power to suspend remove
subordinate officials or heads of departments, then
the citizens can Justly demand of him that he shall
be individually responsible for the proper conduct
of the concerns of the municipality, and if griev-
ances exist they will know to whom to apply for
remedy, or upon whom to fix the blame"
The learned Judge fortifes this text by
references to the work of the famous "Com-
mittee of Seventy" of New York to various
recent and contemporary writer's on the sub
ject. and notably, to the confirmation fur
nished in the Municipal History of Boston
by the Hon. Josiah Quincy, who filled the
of its first existence, and from whose
own was taken, and as to the
main provisions and especially the execu-
tive province, reads like our own, word for
word.
cannot from any legal authority find,
confirmation of the claim that any office re-
ferred to in section 81 of chapter can be
made except as there prescribed, so long, as in
the case at bar, the Mayor claims the right to
act and does act; and it seems almost whim-
steal to me that by the mere trick of "speak-
ing first an Alderman backed up by a
majority vote, can defeat this solemnly dedi-
Gated statute authority as though it wera
merely the snap judgment of nominating
caucus.
But it is objected that this is not an Of
flee. The best definition I can find of the
word in this sense is ga public trust cover
ing defined term, with prescribed powers
and obligations, and the right to the
fees or the salaries thereof" Here is an
tenure, a considerable bond,
line of duty surprisingly responsible
and delicate, right to sell Intoxicating
liquors of every kind, in derogation of the
general statute and the declared policy of
twenty-fv years, with no check but the in
dividual judgment, while not even the trained
apothecary or the family physician can law
fully furnish spoonful of medicinal wine to
save human life. In everything that makes
an office there is wanting no functions that
the ingenuity of the human mind can supply
or suggest. 1t is true that the word "office"
was originally used where Situation ap
pears now; butI take it to have been nat
ural result of the change of policy. For,
originally, this agency was permanent and
established place, created and maintained by
force of the statute itself. When it was
made optional with the municipal authorities
whether or not they would establish an agen-
cy for the political year, it ceased to be inevi-
tably statute office; but it does not by any
means follow that when the authorities es-
tablish the agency, under the law, it is not
an "office.' Suppose there be thirty police
men in the present enrolment, and by
and by the Mayor and Aldermen, under
the charter, create another from
choice and need. 1t isn't an "office' in the
calendar, or even in mems minds to- day but
it would be one when the Aldermen agreed
to or voted it, and then the Mayor would ap-
point man to fill it, and the Aldermen
would confirm or not, as they chose. And SO
with this Liquor Agency; there is nothing
deep or dark about this use of words; it is
all just eventual of common sense. And
the same general answer could be made about
the change of "shall appoint to may ap
point suitable person" sc. dare say, and
leave it without argument, that this never re-
lated to mode of appointment at all; but
only to the appointment or non appointment
itself.
But, finally, it is urged in defence that, it
appearing by the records Mr.. Weeks was
duly appointed previous year, and no legal
succession effected, he holds over, as an
officer de .facto. There might be force in this
if it were an undying office, which, so far
from being the case is defunct with the year
for which it was established, and it is q
maxim old as the civil law itself that there
cannot be an officer de .tacto unless there be