The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1881-12-02

by implication TO DOtn. But Inc arSumeu'
for the power of the President, whether
unanswerable or not, has no application to
the question under discussion. And be-
limited and restricted by subsequent legis-
lation, by Revised Statues U. S., 1857,
and seq., which diminish and regulate his
power of removal in essential particulars.
In this state the Council Is part of the
Executive, and specially created to advise
the Governor in the executive part of gov
ernment. Indeed, it will be seen, in the
different parts of the constitution, that
when the appointment is by the Governor
with the advice and consent of Couns ii,
not only no power of removal is given to
the Governor, but that he is even denied
that power when an officer is to be removed
by address, without the advice OF his Coup-
Gil first had and obtained.
By g of the same article "He shall
nominate, and, with the advice and consent
of the Council, appoint all judicial officers,
coroners notaries public; and he shall also
nominate, and with the advice and consent
of the Council, appoint all other civil and
mill ary officers, whose appointment is not
by this constitution or shall not by law
be otherwise provided for, &c. The
cases s'otherwise provided for" are those
in which the advice and consent of the
Council is not necessary. The Reporter is
not an officer otherwise provided for, :"
because his appointment is by their advice
and consent. Excepl in the special in
stance In which the power Of appointment
is conferred on the Governor he cannot
appoint without the concurrence of the
Council. Where he has such power by
statute, he has the right of removals as in
cident to the power of appointment.
As an illustration by chap. 200 of the
Acts of 1887, continued through all subse-
quent revisions and found In r. S. 1871, g.
l10, s l, the Governor of the state, was au
thorized to appoint commissioners to take
the Acknowledgement of deeds and TO COM
mission them to hold office during his
pleasure So the Act of 1876. q. 110, au-
thorizing certain persons to solemnize mar
riage, gives the right to appoint to the Gov
ernor alone.
These are instances of the Offices "other-
wise provided for'' where the Council have
nothing to do 10 advising or consenting to
the appointment or removal. The power
of the Governor is derived from the
statutes, conferring it, and from them
alone. t5aG Ts f0 afs -e
s By Section of part I'd, of the same arti-
Gle, the Council are 'stO advise the Govern
or in the executive part of the Govern
ment," and he with the Councillors, or
majority of them, may from time to time
hold aud keep Council for ordering and
directing the affairs of the state according
to law. The Council are "to advise the
Governor in the executive part of govern
ment" Appointments belong to the exec
utive part of government. The removal
of unfit or Incompetent men belongs
equally to "the executive part OF govern
ment." If removals belong to ssthe execu-
tive part of his duty, then the Council
by the constitution are to advise with him
In reference thereto, unless otherwise spec
tally provided. If they are not done ''in
the executive part of government" from
whence is the power derived? The right
to remove is claimed as belonging to the
executive part of government, but if it be
so, thsn it is part in which the Council
are to advise. The very claim by the Gov
ernor to remove as belonging to the execu
tive part of government, necessarily re-
quires and involves the advice of Council,
unless there are portions of the executive
part of government, in which he may act
without advice. But the constitution des-
ignates none such, and the power of re-
moyal by the Governor exists only in the
few cases specially provided for" where
the appointing and the removing power is
Entrusted to him by statutory provisions.
( The Council is to be held and kept 'for
ordering and directing the affairs of the
state according to law" A removal is no
less one of the affairs of the state than is
an appointment There is nothing more
important than that the offices of the state
be filed by able and competent men, and
if they are held by weak. incompetent men,
that such men should be removed. Now,
the removal and the appointment equally
appertain to 'sthe affairs of the state," in
the ordering and directing of which the
Council are to participate, unless it is to be
held that the one is an affair of the state
and the other is not.
Bv Art. 9, s 6, "The tenure of all Offices
which are not or shall not be otherwise pro-
uided for, shall be during the pleasure of
the Governor and Council"
The general rule is that appointments are
by the Governor with the advice and con-
sent of the Council, and the tenure is dur
ing their pleasure. The tenure may be at
the pleasure of the Governor alone, when
he has the appointing power without ad-
vice or consent of his Council The cases
'sotherwise provided for' are those where
the appointing power is vested in the Gov
ernor alone-and the power of removal be-
ing an incident to that of appointment is in
his hands, or there is constitutional limi-
tation upon the conditions and duration OF
official tenure.
By Art. 8. So, 'eyery person holding an
office, NAV be- removed by the Governor
with the advice of the Council, or the ad-
dress of both branches of the Legislature"
In the only case, where removal is SPECIFIC
ally referred to, the advice of the Council Is
required. In the case of an address by
both branches of the Legislature the power
Of removal is not intrusted to the Governor
as the Supreme Executive, but is made sub
iect to the limitation of the advice of the
Council.
If on address made by both branches OF
the Legislature for the removal of the Re-
porter, the Governor could not remove ex-
cent by the advice of Council. Much more
then can he not remove on his own motion
--(expect in the special cases otherwise
provided form where he may remove
those he has appointed without advice OF
Council. 1t is thus clear, that the general
power of appointment or removal IS no part
of the executive functions of the Governor
alone. In reference to each his action is
restricted by the advice and consent OF his
Council. Even in the special case of an ad-
dress of both branches of the Legislature,
he is subject to their advice, without which
there can be no removal. His power OF re-
moyal is restricted to the instances where
the appointment is vested in him alone, and
the power of removal is especially given in
the Statute conferriDg the appointing power
or is an inference from the power of ap-
pointment
Where the appointments have been with
the advice and consent of the Council, the
removals have been by the appointment and
qualification of a successor. The appoint
ment and removal are by one and the same
act The appointment removes. This
should obviously be so, else the Governor
might create vacancies he could never hll,
because the Council not consenting to his
nominations, the Offices would remain va
cant. Hence removals have ever been by
confirmed nominations. The removal is a
consequence of the appointment OF new
officer. 1t never precedes it.
The document purporting to be remov-
al, is equally unauthorized and unprece-
dented in the administration of the state.
The DO yer of removal where the appoint
ment is by the Governor with the advice
and consent of the Council,i is not conferred
by the constitution on the Governor.
Neither is it by the statute creating the Of
fee, which was approved June 20, 1920, by
which the Governor by and with the advice
of the Council "was empowered to appoint
Reporter" who was removable al the
pleasure of the executive"
A constitution had just been adopted.
A new government had been inaugurated.
Those who framed the constitution were
called upon to administer the government.
The act first creating the office of reporter,
was passed shortly after the adoption OF
the constitution The president OF the
constitutional convention was the Governor