Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1881-12-02

constitution. or shall not BY Law be otherwise
provided for, etc. The cases. ''otherwiss
provided for" are those in which the advice
and consent of the Council is not necessary
The Reporter is no: an officer .'otherwiss
provided for" because his appointment is BY
their advice and consent. Except in the
special instance in which the power of ap
pointment is conferred on the Governor he
cannot appoint without the concurrence Of
the Council. Where he has such power b,
statute, he has the right of removal as Incl
dent TO the power of appointment
As an illustration, BY chap. 290 of the Act,
of 1887, continued through all subsequent re-
visions and found in X. S. 1871, c. ll0, ST.
the Governor of the State, was authorized to
appoint commissioners to take the acknowl-
edgement OF deeds and to commission them
to hold office during has pleasure. So the
Act Of 1876, c. ITO, authorizing certain per.
sons to solemnize marriage. gives the right
TO appoint to the Governor alone.
These are instances of the offices '.other.
wise provided for" where the Council have
nothing to do in advising or consenting to
the appointment OF removal. The power OF
the Governor is derived from the statutes,
lt-
By Section one of part I'd, of the same ar
ticle, the Council are Ito advise the Gov
ernor in the executive part of government" I"
and he with the Councillors or a majority OF
them, may from time to time hold and keep
Council for ordering and directing the af-
fairs of the State according to law. The
Council are Ito advise the Governor in the
executive part of government" Appoint
ments belong to the executive part of gov
ernment. The removal of unfit or incompe-
tent men belongs equally to the executive
part of government" If removals belong
to 1.-THE executive part of his duty, then the
Council by the constitution are to advise with
him in reference thereto, unless otherwise
specially 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 ex-
ecutive part of government, but if 1t be so,
then it is part in which the Council are to
advise. The very claim by the Governor to
remove as belonging to the executive part
of government. necessarily requires and in
wolves the advice of Council, unless there
are portions of the executive part of gov
ernment in which he may act without ad-
vice. But the constitution designates none
such, and the power of removal by the Gov
provided for where the appointing and the
removing power is intrusted to him by statu-
tory 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 appoint
ment. There is nothing more important
than that the Offices of the State be filled 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 1.-THE af-
fairs of the State in the ordering and d-
recting of which the Council are to partici-
pate, unless it is to be held that the one is
an affair of the State and the other is not.
By Art Q. s 6, "The tenure of all offices
which are not or shall not be otherwise pro-
rided 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 consent
of the Council, and the tenure is during their
pleasure. The tenure may be at the pleas
ure of the Governor alone, when he has the
appointing power without advice or consent
of his Council. The cases "otherwise pro-
vided for" are those where the appointing
power is vested in the Governor alone-and
that of appointment is in his hands, or there
is a constitutional limitation upon the con-
ditions and duration of official tenure.
By Art. .. 5 ), ''every person holding an
office. may be removed by the Governor with
the advice of the Council, on the address of
both branches of the Legislature" In the
only case, where removal is specifically re-
ferred to, the advice of the Council is re-
quired In the case of an address by both
branches of the Legislature the power of re-
moval is not intrusted to the Governor as
the Supreme Executive. but is made subject
to the limitation of the advice of the Coun-
Gil.
If on address made by both branches of
the Legislature for the removal of the Re-
porter, the Governor could not remove ex-
cept bv the advice of Council. Much more
then can he not remove on his own motion
Except in the special cases otherwise ''pro-
vided for where he may remove those he
has appointed without advice Of Council.
1t is thus clear that the general power Of ap-
pointment or removal is no part of the ex-
ecutive 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 address of both
branches of the Legislature. he 10 subject to
their advice, without which there can be no
removal. His power of removal is restricted
to the instances where the appointment is
vested in him alone, and the power of re-
moval is specially given in the statute con-
ferring the appointing power or is an infer
ence from the power of appointment.
Where the appointments have been with
the advice and consent of the Council the re-
movals 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 go, else the Governor might
create vacancies he could never fill, because
the Council not consenting to his nominations,
the office swould remain vacant. Hence re-
movals have ever been by confirmed nomi-
nations The removal is a consequence of
the appointment of new officer. 1t never
precedes it.
The document purporting to be removal,
is equally unauthorized and unprecedented
in the administration Of the State.
The power of removal where the appoint
ment is by the Governor ith the advice and
consent of the Council. is not conferred by
the constitution on the Governor. Neither
is il by the statute creating the ONCE, which
was approved June 20, 1920, by which the
Governor by and with the advice Of the Coun-
ell '.was empowered to appoint Reporter,
who was removable at the pleasure of the
executive"
A constitution had just been adopted. A
new government had been inaugurated.