The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1881-12-02
Il lie PRESS.
APPOINTMENT AND REMOVAL


10. 1895, uses the word Executive as equiva-
lent to and meaning Governor and Council;
But it is unnecessary to give additional illus
trations of the use of the word Executive by all
the different Governors who have been called
to administer the affairs of the State.
The same word may have different mean
ings, and different words or forms OF express
sion NAV be used to convey the same idea. The
various Statutes in relation to officers appoint
ed by the Governor by the advice and consent
OF the Council, enacted in the early days OF
the Government, as we'll as since. adopt diner
ent language to express one and the same
meaning. Thus by G. 148, of the Acts OF 1871,
"the Governor, with the advice and consent
of Council" was empowered to appoint an n
spector General of beef and pork, ITO Dc Dy
them removable at pleasure. by c. no, they
were authorized to appoint an Indian Agent
odnring pleasure" By C. III, they were au-
thorized to 'appoint and commission" pilots,
whom they might suspend or remove "at their
discretion"
By c. 81, of the Acts of 1920, they were au-
thorized to appoint a reporter removable" at
the pleasure of the executive. 1.-The Bank
Examiner is appointed by the Governor with
advice of Council'' and holds his Office by Il.
S., c. AZ, s "a, Subject to removal at any time
by the appointing power"
Coroners by r. s., C. so, 40, "hold their
offices according to the provisions of the con-
stitution." By r. S., C. 142, ) /, the Trustees
of the State Reform School are to be appointed
by the Governor with the advice OF the Coun-
Gil, "to hold their offices during the pleasure OF
the Governor and Council but not more than
four years under one appointment.
In some instances the statute says nothing IN
relation to removal, but that would not AFFECT
the right TO remove.
Most of these offices were created at the COM
mencement of the State government. But
notwithstanding this varying use oflanguage,it
hlu the iOtanfiOn of the l6gS-
lature to place the power of removal in the
Governor by the advice and consent OF his
Council. 1t was so understood Dy those 2d-
ministeriDg the government, when the ofhces
named and others with varying language as to
removal, we're created, for in all instances
the commissions were issued and s'gned-the
respective officers being removable at the pleas
ure of the Governor and Council.
In some instances, in the different revisions
of the statutes, the language as to removals
has been changed from one form of expression
70 another, the different forms being regarded
as equivalent and identical in their meaning
the revisers not being authorized to change
the law.
By G. 90, of the Acts of 1921, the Governor
and Council were authorized to appoint and
commission fish inspectors to hold office "dur-
ing his pleasure" and the first commission was
issued ''dnring the pleasure of our Governor"
This, it is believed, is the only case where an
appointment by the Governor and Council was
By C. 257 Of the Acts of 1884, it was enacted,
THAT ALL civil officers, appointed and COM
missioned by the Governor and Council, or
who shall be hereafter commissioned by the
Governor and Council. whose tenure of office
is not otherwise provided for or limited by the
constitution, shall hold and exercise their re-
spective offices for the term of four years and
no longer, unless re-appointed: Provided,
however, that this act shall not be so construed
as to prevent the Governor, with the advice of
N@1ro
within the term Of four years: and this act
shall not extend to such ministers OF the Cos
pei as are or may be appointed and commits
stoned TO solemniZe marriages; or to such as
are or may be commissioned by the Governor
before whom certain judicial, executive and
civil officers are required by law to take and
subscribe the oaths or atfirmations required by
the constitution"
The reporter is a civil officer appointed and
commissioned by the Governor and Council.
His "tenure of Office is not otherwise provided
for or limited by the constitution" He is,
therefore, by the express terms of the Statute
to hold for four years, "uAless re-appointed."
He may by the proUiSo be removed by "the
Governor with the advice of the Council
and not otherwise. The statute is general and
applies to ALL civil officers. The exceptions
from this statute specially named "the
cases provided for and limited by the constitu-
ton, ARE judges whose tenure was during
good behavior the age of seventy-Justices
of the Peace and Notaries Public for seven
years if they so long behave themselves well.
The act embraced within its terms the office of
reporter, who originally was removable at the
pleasure of the executive" 1t afirms by ne
cessary and inevitable implication the correct
ness of the construction first given as to the re-
movability of the reporter, for he is within the
obvious words of the act.
This act was passed in the administration of
Gov. Paris, learned and able judge and an
influential member Of the constitutional con-
vention. In the case of fish inspector-arl Off
Ger appointed by the Governor with the advice
of the Council, to hold at the GooerRor's pleas
ure, the commission was changed and the ap-
pointee held his office for four years, remova-
BILE at the pleasure of the Governor by the ad-
vice and consent of the Council.
This act with slight alterations by way OF
condemnation and not intended to effect any
change is found in R. s.. C. 2, "a. The origi-
nal enactment was passed for the purpose of
establishing uniformity in the duration of Off
cial life. II applies to all, whose tenure of
Office is not otherwise provided for by law or
limited by the constitution" 1t applies to the
Office of reporter equally as to other offices.
There is no statute taking this Office from its
operation. There is no reason why there
should be such statute. @
In all cases where the Governor appoints
with the advice and consent of the Council,
they remove. When the appointing power is
in the Governor alone, he may remove.
The contemporaneous construction given to
the Statute adopted and uniformly followed by
the series of able and upright men, who
have administered the affairs Of the State, has
been in accordance with law and with the un-
donbted intention of the Legislature. Neither
negligence, ignorance nor imbeciliity is
to be imputed to them. Indeed, as is
forcibly remarked by Parker G. j., in Packard
V. Richardson, II Mass. 144, "a contempora-
neous is generally the best construction of a
statute. 1t gives the sense of community of
the terms made use of by Legislature.
If there is ambiguity in the language, the
understanding and application of it, when the
statute first comes into operation, sane
toned by long acquiescence on the part of the
Legislature is the strongest evidence that it
has been rightly explained in practice
To the questions proposed-we answer:
l. That the reporter does not hold his Office
at the will and pleasure of the Governor alone,
and is not removable by him.
2. That he is removable only by the Cover
nor by and with the advice and consent of the
Council. JOHN APPLETON.
JOHN A. PETERS.
W. G. BARRows. K