The Portland daily press., 1881-12-01
THURSDAY MORNING. DEC. 1.
BY TELEGRAPH.
SETTLED.
The Judges Response to the
Councils Question.
THE COUNCILS CONSENT NECESSARY
TO THE REMOVAL OF AN OFFICER.

AUGUSTA, Nov. 30.-The opinion of the JUS
tees of TIE Supreme Judicial Court upon the
question submitted to them by the Executive
Council in March last, whether the Governor
has the power of removal without the concur
renee Of the Council, as claimed by him in re-
gard to the case of the Reporter of Decisions,
was read at the meeting of the Governor and
Council to-day. There were three papers
drawn up. The first paner was signed by Chief
Justice Appleton and Justices Peters and Bar
rows, who, after an elaborate, learned and ex-
haustive argument stated their conclusions as
follows:
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 and with the consent of the Council.
The remaining Justices concured in the
opinion above, but differed somewhat in re-
gard TO minor points. On the main question
the Justices were unanimous in their opinion,
which sustains the position maintained by the
Executive Council and leaves Gov. Plaisted
without authority for his attempted removal.
BANGOR, Nov 3O-The Whig tomorrow
prints the full text of the opinion of the JUS
tices of the Supreme Judicial Court unani-
mously deciding the Governor has not the
power to remove the Reporter of Decisions
without the advice and consent of the Execu-
tive Council. The document is very able and
exhaustive, occupying seven newspaper col
umns.
In April, 1880, J. w. Spaulding was appoint
ed Reporter of the Law Court, his commission
reading four years "unless sooner removed by
the Governor and Council" March 30, 1881.
Gov Plaisted elaine! to remove Spaulding
without the advice and consent of the Council
by serving on him an official notice of remov-
al. March 3lst, in the session of the Governor
and Council, an order was introduced asking
the opinion of the Supreme Court as to the
Governors power of removal The Governor
refused to entertain the motion and left the
chamber, whereupon the Council adopted an
order asking the opinion of the Court.
The main opinion is signed by Chief Justice
Appleton, Justices Peters and Barrows, and
elaborately discusses the law and precedents
bearing on the case since the foundation of the
State. Gov. Plaisted based the removal on the
statute creating the office By which the report
er is removable at the pleasure of tho execu-
preme and sole executive, while the Council
claimed to be a constitutional branch of the
executive government. The Court opinion
shows the invariable Interpretation that the
executive includes the Governor and Council,
and cites almost imnumerable casessto show it
always has been so held by the Governors and
lawmakers of Maine. The Court holds that in
all cases where the governor appoints with the
advice and consent of the Council it requires
concurrent action to remove, and declares "the
document purporting to be a removal is equal
ly unauthorized and unprecedented in the ad-
ministration of the State" The opinion con-
cludes by answering to the question proposed:
1st--That the reporter does not hold his Office
at the will and pleasure of the governor alone
2d-That he is removable only by the gov
ernor by and with the advice and consent of
the council.
Justices Virgin, Symonds and Danforth con-
cur with brief addendum that to hold
Office during the pleasure of the executive con-
templates the same mode of executive action
in effecting the removal as in making the ap-
pointment, and that sit was never intended the
governor, who has only the power to nominate
for appointment, shall be able alone to create
the vacancy which he has no power to fill
without the action of the council"
Justices Lbbey and Walton express doubt
as to whether the question is one properly COM
ing under the constitutional provision requir-
ing the opinion of the Court, but on this point
express Difference to the contrary view of SO
many of their Associate Justices, and after
discussing ct length the constitutional and
statutory pro, sions relating to appointments.
concur in the result Of the opinion of the other
judges and answer that the governor has no
power to remove the Reporter of Decisions
without the consent of the council
The opinions Of the eight judges unanimously
sustain the position held by the council, and
show the Governors attempted removals to
have been unauthorized assumptions of power.