The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1881-12-02


act. 1t may be said that they may De required
to act with the Governor in making new ap-
pointment to the Office. II they should DC they
must exercise the duties OF their once accord,
by the Governor in no way effects their constr
tutjonal powers or duties. 1t is their duty to
act in some way on all nominations made by
the Governor. If one should be made in place
of Mr.. Spaulding, aud they desire his removal,
they can easily accomplish it by confirming tho
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 removal
and doubt the power OF the Governor to remove
without their consent they can decline to con-
firm, until Mr.. Spaulding's right to the ONCE
can be judicially determined by the Court.
In the mean time the public interest will not
suffer.
By the papers sent up it appears that Mr..
Spaulding denies the power of the Governor
to remove him without consent of the Council,
and claims the right to discharge the duties OF
the Office, while thus exercising them under
color Of his commission, and with claim OF
right to do SO, he is an officer de Jdcto, II not
de .jure, and by the we'll established rule OF
law, SO far as the public are concerned, his
acts will be as valid and binding in the one
case as in the other. Belfast " Morrill,, 20
Me, $50. Sheehan's case, 122 Mass. 445.
There is another reason why the question is
one upon which the Justices are not required
to give their opinions. 1t is pure question
of law whether, by the act OF the Governor,
Mr.. Spaulding was legally removed from the
Office of Reporter of Decisions. 1t involves
his title to the Office. 1t is a question upon
which both the State and the officer have a
right to be heard before final Judgment is
pronounced. The proper process in which the
question can be judicially tried and determin-
ed is the writ of quo aodrrGnto which may be
sued out at any time by the Attorney General;
and in it each party would be properly before
the Court, could be represented and heard,
and final Judgment could be rendered.
T. a,tox fI,afrb aG
nor had the power to remove as claimed by
him, and that Mr.. Spaulding was legally re-
moved, it would not be binding upon him as
he has had, and can have, no opportunity to
be heard in the matter; and it would violate
every principle of law and Justice to judicially
determine the right oil an officer to his office
without giving him an opportunity to be heard
and if the answer is against the power OF the
Governor, it would not be binding upon the
State, for the Attorney General might at once
bring the writ OF quo acarranto, and the Court
would be obliged to hear the parties and de-
termine the question judicially. The Court
should not PREJUDICE the case without hear
ing in the proper process, unless the occasion
is so solemn as to require it, to avert some
public injury.
If the Justices are obliged to answer the
ouestion sent up, it is not perceived why they
NAV not be obliged to answer any question put
upon statement of facts, by the Council, In
yolving the title of sheriff or other elective
office to the Office, on the ground that II there
is vacancy it would be the duty of the Coun-
ell to act with the Governor in Killing land
thus introduce new mode OF trying the right
of the officer to his office.
THE case is very similar to that in which the
Court in Massachusetts declined to answer the
questions propounded by the House of Repre-
sentatives in 1877. Opinion of the Justice,
100 Mass, 600.
ought not to be answered. But although my
Judgment leads me to this conclusion, my con-
6dence in its correctness is somewhat shaken
by the fact that so many OF the other Justices
of the Court are of different opinion. In
cases of doubt it may be the duty OF the court
to weld in favor of the prerogative OF the DO.
DIV propounding the question. The Justices OF
the Court in Massachusetts, have twice recog-
nized this duty, and answered under protest
5 Met 597. Cush. 604 Inasmueh as any
matter should be judicially brought before the
Court by the proper process, land lest, in de-
clining to answer, may omit the performance
Of constitutional duty. will very briefly ex-
press nv opinion upon the question submitted.
: I concur in the result of the opinion of Chief
Justice Appleton and Justices Barrow and
Peterg: but not in all the propositions and ar
guments upon which the result is reached.
By the Constitution of this State, Article 9,
Section 6, 1.-THE tenure of all offices which are
or shall not be otherwise provided for shall be
during the pleasure OF the Governor and Coun-
Gill;"
The office OF Reporter of Decisions was Gre
ated by Act of 1920, chapter "a. section y,
which provided that the officer "shall be re-
movable at the pleasure of the Executive"
This provision is substantially the same in
the Revised Statutes. e. S., c. n, %. The
word executive has two well-defned and
recognized meanings; ana as applleo 70 OUT
form of State Government, one designates the
Governor as Chief executive. or head OF the
executive department, the other embraces both
the Governor and Council when they are re-
quired to act together in the execution OF any
executive power and while the Constitution
(Artle 5, Part First, Section - declares that
the supreme executive power OF the State snail
be vested in a Governor, it uses ARTICLE g, Sec
ton 81 the words executive power" as en-
bracing both the Governor and Council.
Considering the question upon the act OF
1920 alone, the question arises. In which sense
did the Legislature use the word executive"
There is much in the early legislation of the
State, and in the Interpretation OF the word
executive" and executive authority" as
thew occur in the constitution of the United
States and the statutes OF this State, by the
several departments of our government, upon
which an argument may be based In support
of either construction, and after careful CON
sideration of the question IN all the Hgnts
drawn from these sources, it appears to me to
be very doubtful whether the Legislature in
said act used the word executive" as desig-
mating the Governor alone, or the Governor or
and Council. 1t was undoubtedly competent
for the Legislature to give the Governor alone
the power Of removal; but If such intention Is
not clearly expressed in the statute, then the
tenure of the Office must be determined by the
constitutional rule before quoted. But there
is another statute which it appears to ma con-
clusively settles the question:. s., C. q "a
This statute is derived from the act OF 1924,
chapter 257, which reads as follows: THAT all
civil officers appointed and commissioned by
the Governor and Council, or who shall here
after 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, un-
less reappointed Provided ho1oeuer, That this
act shall not be SO construed as to prevent the
Governor with the advice of Council from re-
moving 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 ap-
pointed and commissioned to solemize mar
riages; or to such magistrates 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 oaths or
affirmations required by the constitution"
The provisions of that act have been brought
down through the revisions of 1910 and 1857, to
the revised statutes before cited, with no
change of language indicating an intention OF
the Legislature to change the meaning. except
change in the phraseology designed to ex-
cept from the operation of the statute certain
offices created by statute with a tenure for a
fixed term other than four years.
Under the provisions OF the Act OF 1874, II
the tenure of the office of Reporter of Decis-
ions 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 ten
ure of the Office was not otherwise provided
for or limited by the Constitution" and be-
came subject to the provisions of said Act OF
1924, and by it was fix. at four years unless
sooner removed by the Governor with advice
of the Council
The Acts of 1920 and 1924 remained without
change till the revision of 1910, and up to that
time the Act of 1920, SO far as the tenure Of
the office was concerned, was modified and
controlled by the Act of 1924. The provisions
of both acts, having been incorporated into the
revisions of 1910, 1857 and 1871, by well set
tied rule of construction, they must receive
the same construction as before the revisions.
Hughes v. Farrar, As Me. r. French v. Co.
Com RS, GA 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.. Greeneaf 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 pleasing OF
the Governor and Council. After the passage |
of the Act of 1924, and at the end of four years