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

=
men re4nlfed hy the Gsvernor, Councii'
senate of House Of Representatives. The
questlou propounded must be an irnoortnn,
questiou Of Law, and the occasion upou = bicb
II 10 put must be solessn occasion. To iu.t;fv
we Justices Of the Court in giving an opinion.
me question may be an important question
OF law, but if the occasion is not q solemn
one within the meaning of the constitution.
1t should not be answered
respectfully submit nth great Difference
10 the opinion of the other Justices of the
.ourt' that the occasion upon which the ques-
tioh IS propounded, AS shown by the state
ment OF facts, is not a solemn occasion win.
IN the true meaning of the constitution.
he object of the clause of the constitution
under consideration appears to me to be to
enable the Governor, Council, Senate or
House Of Representatives. TO obtain the adj
wee OF the Justices upon anv important
question of law, of public concern. which the
cody mrking the inquiry has occasion to con-
sid=r and act upon in the exercise of the leg
lsiatlve or executive powers intrusted 10
them respectively, for their guidance in their
action.
1t does not contemplate that one branch Of
the executive or legislative department NAV
properly put TO the Justices, questions in
regard TO the power of another to do an act
such act, in the performance of which the
body putting the question was not requested
to act, and upon which it cannot be required
to act 1t cannot be that it contemplates that
the Senate or House of Representatives NAV
PROFOUND questions in regard to the power of
the Governor to remove officers from office
or as to the legal effect of an attempted re-
movai, upon which it can in event act
Nor does it appear that it contemplates that
the Council may require the opinion of the
tJustices, as to the legal effect Of the action of
the Governor in assuming to remove an
officer from Office without their consent In
doing so they would require the Justices 20
Idetermine the rule by which the Governor
should be controlled in his action in matters
upon which he does not require their advice
or action, without his consent, and against
his protest. The fact that the Governor act
ed alone precludes the idea that the Council
can be required to Join in the same act II
may be said thot they may be required to act
with the Governor in making new appoint
ment to the office. If they should be, they
mast exercise the duties of their Office accord
lug to their judgement. The attempted re-
moval by the Governor in no way affects
their constitutional powers or duties. 1t is
their duty to act in some way on all nomina-
tons made by the Governor If one should
oe maui Il" Piaee vi VII oPauiuihg' anu thev
desire his removal, they can easily ac-
complish it by confirming the nomination,
and then the question of the power of the
Governor to remove alone, will be of no
consequence. If they do not desire his re-
moval, and doubt the power of the Governor
TO remove without their consent, they can
decline to confirm, until Mr.. Spaulding $
right to the Office can be judicially determined
Wy '"e oou,'- 4" Tue mean 'i''e 'he p"oiic
".es' IA "'' 'u'
by the papers sent up 1t appears that Mr.
Spaulding denies the power OF the Go'ernor
to remove nm without consent ofthe Council,
and claims the right to discharge the duties
of the office. While thus exercising them
under color of his commission, and with a
claim of right to do so, he is an officer de
facto. if not de Jure, and by the well estab-
ished rule OF law, so far as the public are
concerned his acts will be as valid and bind
ing in the one case as in the other Belfast
" Morrill,, 65 Me. sos. Sheehans case, l22
Mass. 445.
There ia another reason why the ouestion
ia one upon which the Justices are not re-
ouired to give their opinious. II is a pure
ouestion of law whether, by the act of the
Governor, Mr.. Spaulding was legally remov-
ed from the office of Reporter of Decisions.
Ii involves his title to the office 1t is a ques-
ton upon which both the State and the Ofilcer
have n right to be heard before a final iudg-
ment is pronounced. The proper process in
which the question can be iudicially tried and
determined, is the writ of quo rarranto,
which NAV be sued out at any time by the
Attorney General; and in it each party would
be properly before the Court, could be repre-
scented and heard, and final judgment could
be rendered.
If the Justices should answer that the Gov
rrnor had the power to remove as claimed
bv him. and that Mr.. Spaulding was legally
removed. il would not be binding upon him
as he has had and can have. no opportunity
To be heard in the matter: and it would VIC
late every principle of law and justice to
iudieially determine the rights of an officer
to his Office without giving him an oppor-
tunitv to be heard-and if the answer is
against the power of the Governor, it would
not be binding upon the State for the Attor-
ney General might at once bring the writ of
guo paryunto. and the Court would be oblig-
ed to hear the parties and determine the
question iudcially. The Court should not
PREJUDICE the case without a hearing in the
proper process, unless the occasion is so
solemn as to require it, to avert some public