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

"Oa0S CAcNutIvC 0u1UfUgIUK OOS1
the Governor and Council.
A. Considering the question upon the Act o.
1920 alone. the question arises, In which
sense did the Legislature use the word .ex-
I ecutive."
There Is much in the early legislation of
the State. and in the interpretation of the
word executive" and executive authority
as they occur in the Constitution of the
nited States. and the statutes of this State
by the several Departments of our govern
menf, upon which an argument may be based
In support of either construction: and otter
a careful consideration of the question in all
the tights drawn from these sources il ap-
pears to me to be very Doubtful whether the
Legislature in said act used the word s-ex-
ecutive" as designating the Governor alone.
or the Governor and Council. II was I'M
deubtedly competent for the Legislature to
give the Governor alone the power of remov-
al; but if such intention is not clearly ex-
pressed in the statute, then the tenure Of
The office must be determined by the Consti
tntlonal rule before quoted. But there is
another statute which it appears 10 me con-
ciuslvei: settles the quesjion-k. $, C. =, 5
81. This statute is derived frou. the Act of
1924, chapter 257. which reads as follows ::
That all civil officers appointed and COM
| missloned by the Governor and Council or
who shall hereafter be 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 respective Offices for the term Of four
years and no longer, unless re-appointed;
Prorided ho9erer, That this act shall not be
so construed as to prevent the Governor with
the advice of Council from removing such
officer within said term of four years and
this act shall not extend to such ministers of
the Gospel as are or may be appointed and
commissioned to sOlemnize marriages: or to
such magistrates as are or may be commits
| stoned by the Governor, before whom GER
tain Judicial, executive and civil officers are
required by law To take AMI subscribe the
oaths or atfirmations required by the consti-
tuition"
The provisions of that act have been
brought down through the reysions of 1910
and 1857. to the Revised Statutes before cited
with no change of language indicating inten-
ton of the Legislature to change the mean
ing. except a change in the phraseology de-
signed TO except from the operation of the
statute certain offices created by statute with
a tenure for fixed term other than four
years.
| Under the provisions of the Act of 1924, il
the tenure of the office of Reporter of De-
cisions was determined BY the constitution,
then the Governor had no power to remove
without the consent of the Council. If not,
and the Reporter was removable at the
pleasure of the Governor under the act of
1920. then the tenure of the office was not
otherwise provided for or limited by the
constitution" and became subject to the pro-
visions of sail Act of 1924, and by it was
fixed at four years unless sooner removed by
the Governor with advice OF the Council.
| Tho Act of nd paI nit
out change till the revision of 1910, and up
to that time the Act of 1920. far as the
tenure of the Office concerned. was mod
| flied and controlled by the Act of 1924. The
provisions of both acts, having been incOr-
porated into the revisions of 1910, 1857 and
| 1871, by well settled rule of construction
they must receive the same construction as
before the revsions. Hughes v. Farrar. 45
Me. ~. French V. Co. Com'rs, 81 Me. 5S3.
This has been the uniform construction put
upon these statutory provisions by the execu
tive power of the State from 1924 down to
this year.
Mr. Greenleaf was appointed Reporter in
| 1920, under the act of that year creating the
Office and by the terms of his commission was
to hold the office during the pleasure of the
Governor and Council After the passage of
the Act of 1924. and at the end of four years
|
ed and by the terms of his commission, was
to hold the Office for four years unless sooner
removed by the Governor and Council as
provided in that act The same form of COM
mifsion. so far as the tenure of Office is con-
cerned. has been continued ever since, and
every Reporter, who has held the Office for
more than four years in succession has been
re-appointed at the end of said term.
| | think this construction OF the Statutes,
so long sanctioned. is the correct one, and
that the Reporter of Decisions must be ap-
pointed and commissioned for the term of
four years unless sooner removed by the
! Governor with advice of Council, and that
the Governor has no power to remove him
without advice of the Council.
| therefore answer the question PROFOUND
ed in the negative.
| ARrEMAs LIBBEY.
1 concur in the foregoing opinion pre-
pared by Judge Llbbey.
G. w. WALTON.
! To the Honorable, The Council of Maine.