The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1881-12-02
APPOINT TENT AND RE-
MOVAL.
Opinions of the Bench on the
Spaulding Case.
FUN Text OF the Replies to the Council
Made by the Judges.

Ciai Couib III ansWor 10 Ino request VI tho LA
ecutive Council in the matter of the removal
Of j. W. Spaulding, Reporter of Decisions, at
| tempted by Gov. Plaisted. 1t will be seen
that the bench is unanimous in the decision
| that the Governor has no power to remove
without the consent of the Council.
BANGOR, Sept. 1. 1881.
To the Honorable The Council Of Maine.
| In accordance with the provision OF the
constitution imposing upon the Supreme
Judicial Court, the duty of giving its opin-
| ion upon important questions OF law and
| upon solemn occasions, when required by
/ your body, we have the honor to answer as
| follows:
/ From the papers forwarded it appears
| that Joseph w. SpauldIng was nominated,
| and with the advice and consent of the
| Council, appointed reporterof the decis-
ions of the Supreme Judicial Court, and
| his commission accordingly issued on the
oath of April, 1880, in the form adopted on
/ the organization of the Government of this
state, and followed ever since, reciting
| therein that he was ssto have and hold the
same together with all the powers, priVi-
leges and emoluments thereto of right ap-
| pertaining unto him, the said Joseph w.
| Spsulding, for the term of four years, Ii he
/ shall so long behave himself in said Office,
s'unless sooner removed By the Gorernor
1 and Council for the time being
! The original appointment of the report
| er, was for an unlimited term of years.
| The language of the commission was sub
/ sequently changed in respect of time in
i consequence of chap. 257, of the acts of
| 1924, by which the term of Office was limit
i ed to four years. But in all cases, the re-
| porter held his Office subject to be 'sre-
moved by the Governor and Council for
| the time being"
Under and BY virtue of this commission,
| MIR. Spaulding being duly qualified, entered
/ upon the discharge of the duties of the
/ Office to which he had been appoin ted. On
| March 29th, 1881, the Governor by paper
| signed by him, headed Executive Depart
| ment, to which the seal of the state was
1 attached, notified Mr.. Spaulding that the
term of his office as Reporter of Decisions,
which he neld during the pleasure of the
| Executive, was terminated and that he was
| removed from said Office. This act, if done
''in the executive part' Of his duty. was
| without the advice or the consent Of the
| Council. if rss..
| The question upon which our opinion is
| required relates to the power of the Gov
| ernor in the removal of an officer nomi-
mated and commissioned by him with the
advice of the Council as in the present
| case.
| The order of the Council requiring the
| opinion of the Court received neither the
| assent nor the approval of the Governor.
But that was unnecessary. By the CoE-
| stitution, Art. 6, 8, this Court is obliged
| to give their opinion on important questions
| of law and upon solemn occasions, when
required by the Governor, Council, Senate
| or House of Representatives.
| The Council have the same right to re-
| quire the opinion of the Court as the Gov
! ernor or either of the other designated
| bodies. In case of disagreement between
| the Governor and his Council, ,sthe right to
| require an opinion is given to each-to
| one as much as the other. The assent OF
the Governor is not needed to nor can this
| dissent or veto prevent the action of the
/ Council
! That the question at issue is important
| and that this is solemn occasion, within
| the constitutional provision, should not be
| questioned, since it involves the constitu-
| tional rights and powers and duties both OF
| the Governor and of the Council
| Whether there is vacancy in the office
/ of reporter or not is question of public
| concern. The action of The Council in the
i exercise of their advisory functions is de-
| pendent on the determination of this ques.
| tio,. When the inquiry was made the
| question was pending If there was no
| vacancy, the option was with the Council
| to create one or not, as the public interest
| might require. If there was vacancy
| there was no option. 1t would be their
| duty to fill it, when in their judgment,
| suitable nomination should have been
made To know what their action should
be, it is first to be determined, whether
| there be vacancy, without which knowl-
! edge, they can not understandingly act.
So, too, if the reporter is not removed,
| he is entitled to his salary for his official
| services, and that, too, without the delay
| incident to protracted litigation.
/ Whether there is salary due or not ID a
t~question depending upon the power of re-
| moval existing in the Governor alone.
| The opinion of this Court has been re-
/ quired in some forty instances in relation
| TO variety of subjects and under different
/ circumstances. In no instance has the OBJ
| igation to answer been questioned or an
answer denied. The inquiries made have
embraced great number of subjects-the
right to and the tenure of office-the duty
! of the executive department in relation TO
the counting of Yotes-the right to mem
bership of the House or Senate-the fees
of the members of those bodies-the or
ganization of the legislature and the con-
stituticnality of Statutes, &c.-matters at
| fscting individuals and the public, but in
| respect TO which it was deemed advisable
to obtain the opinion of the Court before
1 final action should be had in reference to
the subject matter embraced in the inquir-
| les proposed, In pursuance, therefore, OF
the obligations imposed upon US by the
constitution, we proceed TO consider the
question submitted.
Article 5, part 1st, of the constitution,
relates to Executive powers" and defines
and limits the same.
i BY 5 "The supreme erecutiUe power of
the State shall be vested in Governor"
thus recognizing him as the head OF the
Executive department of government.
But he is not the Executive department.
HE shall take care that the laws be faith
fully executed" He may issue commits
sions, sign warrants, remit penalties, grant
reprleves, combinations and pardons--but
he does all this by and with the advice of
his Council. He carries into effect the do
ings of the Executive department of which
he is the head but he does not control it.
If he was clothed with Supreme and un-
controlled Executive power, the Council
would have no duties. His powers are on
ly what are specially given him by the
constitution or necessarily inferrable from
powers clearly granted. He is to execute
the powers conferred, in the manner and
under the methods and limitations pre-
scribed by the constitution and the statutes
enacted in accordance Herewith.
1t was early held that the President OF
the United States had the power of remov-
| al without the concurrence of the Senate,
though not that of appointment, without
such concurrence.
The question was so close that the con-
struction was carried by the casting vote of
the Vice President. This construction has
ever been doubted by many of the ablest
Statesmen aud Jurists.
Indeed, in the argument advanced for
the adoption of the constitution by the
great statesman, whose influence was
alike paramount, in its foundation and
adoption; it is said that "the consent of the
body would be necessary to displace as well
as appoint" thus holding that the power
of removal was an inference from that OF
appointment.
But whether this construction was right
or wrong. no argument can be drawn from
the power claimed and exercised by the
President of the United States. The con-
stitution of this State differs so widely
from that of the United States, that the ar
gument from the exercise of such power
by the President is entirely inapplicable.
The reasons assigned for the exercise OF
that power without senatorial concurrence,
were, first, that there might be great mis-
feasance in public Office and the necessity
of promt action, which might not be had
if the Senate was not in session. But this
does not apply, because the Council may
be readily convened at any time by the call