Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1889-04-11
fcontinued from nr.s Pare. /


Application Of the rule. In People w. Has,
He'll. 5 Cal 357. under general lav, Has
keli vas siecfed Clerk Of the Superior Court
in san Franciseo, st September Municipal
election, TO hold Office for tEo years from
AID aft. bis election" Subsequent to his
election md before the expiration Of his
term the charter OF san Francisco. vas
ame a,ied 50 a. 10 provide for the election Of
AL oficer. 10 be elected for the ~hole city
o. the fourth Monday of May. also that the
..ofieersT slscted, should "enfsr upon the
du,ie. Of their respective sffices on the first
Monday 10 July foilos ing" The reIstor vas
elected in May, and ~ss held 10 be An officer
'lor the Who'll city" A literal construction
Of the zcr, you'll have sjectei Ha.kell. and
gwen the rsIat0r the ONCE. Yet the court
held that although he was properly elected,
he vas not entitled TO the office u1til the
expiration Of tso years from the date Of de-
fsnIants election" They say the legislature
has the power TO alter or abridge an office OF
legislative creation, But in this case we do
not think t vas the intentiOu TO do so
Sc, ton Of the Charter OF 1873 Of the City
Of New York, which In substance. provided
that aay person holding Office Who should
during his term accept a seat 10 the legisla
ture. should be- deemed thereby to have VA
Gated his office was held prop .ctiye, and
not TO vacate the city office held by mem
Der Of Il e assembly, at the time Of the pas
sage Of The charter People v. Green.
Supra. Ia both u there cases it will be per
eeived that the implication Of removal is
much stronger thsu 10 the case We are con
.ilrrinz rhe cases OF Gill vs. Milwaukee,
81. Wis li9 and Currier vs. Boston aud
Maine Railroad. II y. II 200, are illustrA-
rive of similar applications Of the rule. The
only case that lind which at all initiates
against thi. con truction. IL Bryan vs.. Cate II,
IL Iowa $50, where it wa, held that a statute
yhieh provided that the acceptance of a
commission TO any military office, which re
quired the incumbent 10 exercise hi, duties
out Of the State, fr more than SIXTY days,
vacated any civil Office held under The Site,
In effect vacated the office Of District At
tOrney though III. incumbent had excepted
BIZ. mill AIRY commission, before the enact
nient Of the statute. This however. vas an
action 10 recover for salary. and 1t appeared
that the plaintiff had net performed the
duties of the Office. or rende ed any services,
and the court held that having made no
claim for month, To the Office he was
"e.topped from demanding the Sta salary.
aud that he could not 'gsinsay the right of
there wa. an actual vacancy, but las in
ease Of a vacancy" This does not. there
fore affect the position. Ga the other hand,
in nearly every case where an act of the
legislature has been held to affect the tenure
OF an office, ! find the act has. either de
elared the office vacant" fixed time be-
You'd which the ncumben; should not act, CT
a specific time when the new official should
10 to nnf 90
Die VS. Van Gaskin, s, Mont. 1913
Ia re Bulger 45, Cal. 553; Alexander vs..
Mckenzie, 2, So. Car, (Rich.) 81; Dickinson
vs. Barnard. ~. Cal. 40; Robinson VS..
White, %, Ark 1870 Territory vs.. Pylex /,
Oregon. lls and Attorney General VS..
saures "a, Cal. II. Moreover. there i, au-
ihority for the proposition, that an officer
nth fixed tenure, cannot be removed by
mere act of the legislature, though the
weight Of authority is Otherwise. See Holmes
vs. Witt, II la 49, and Peters vs.. Meal
lister, | Dhiu 40. In the last case the court
used thus Expressive language. al concur
with the counsel for the defendant that the
lcgi-Is ure has no power by Retrospective
LEGISLATION TO deprive man of an office,
" hen a nan becomes an incumbent of all
flee. he has vested right In that office and
ali such rights are supported by the Constitu
ton An act that would att mpt to deprive
him of this ght would SAVIOR more of des-
potsm than If constitutional legislation. The
lex stature may prescribe rules prospective by
~h.ch he shall be controlled, AMI these he 10
bound to obey; hut 10 Gust him from Office
BY direct l. gislation cannot be done" l,
does not become necessary is this case. how
ever to determine whether i, is within the pow
er of the legislature to remove officer by di-
rect legislation. as, for the reasons above
gwen | am entirely satisfied that such re-
suit is not Intended by Chapter 3l3. OF
Public Laws of 1889
In answer to your inquiry as 10 whether
members OF the Legislature of l3S990 viii
be eligible 10 appointment as railr tai com
mis.ioners under said Chapter, have to say
that they viii not be eligible until the eI
piration of two years from the first Wednes
day of January 1889. Art " Part Sec
10, of the Constitution, provides that mo
senator or representative shall during the
term for which he shall have been elected
be appointed to any civil Office of profit
under the States which shall have been re
ated, or the empluments of which increased,
during such term, except such offices as may
be filed by election by the people" The
office of railroad commissioner is unques-
II
that the 'emolument' of this office has been
increased during the term for which the
members Of the Legislature of 1889 30, have
been elected The provision of law fixing
the comper -aion of the railroad commits
.ioner- prior to the legislation of 1859. is
found in the Revised Statutes Chap 81 See
ll3, and read. thus, Their compensation
shall be live dollars a day while actually en-
ployed in their official duties find nothing
in the law that authorizes them u receive
any other fee for compensation If they
we're actually employed" every secular day
In the year their compensation" could not
exceed Sl565 (or possibly sl570 in a lear
year in any one year. Chap. 1913 of the
Public Laws of 1889. provides The com
pensatiOn of said commissioners, and clerk
which shall be in full for all services to be
performed BY them, shall be two thousand
dollars. per annum, for each commissioner
auI twelve hundred dollars. per annum. fol
the clerk" Their compensation for full
lime under the old law would amount tC
only 81 j65 Under the new law it amount,
TO 81 900. An increase in 'emolument OF
S435. A statement of the case decides 1t
That the duties to be performed under the
new law are in excess of those previously
imposed, does not effect the increase or the
''emolument' received. Constant actua
employ ment for a full year under the old
law, would result IN an "emolumeut' OF
only Sl565. The commissioners can hardly
devote more time to the duties of the office
in one year, under the new law.
In answer 10 your inquiry as to What is
the duty of the Governor, as to appointments
under said Chapter" have to say that, in
ssmuch as this Chapter contempates that the
board of railroad commissioners to be ap'
pointed. under its provisions. shall consist OF
three commissioners, each having separate
and distinct qualifications, the object of the
law can be adequately accomplished, only by
tillirg vacancies as they occur in the board
as now constituted BY appointing the com
missioners in the order mentioned in the law
To I'LL the first vacancy. one. Learned in the
law. who is 10 be appointed and commits
stoned as chairman To fill the second va
csucy, "civil engineer who shall have had
experience in the construction of railroads.
To ill the third vacancy, one who has "hsd
experience in the manager ent and operation
of railroads In order to avoid confusion,
the appointment and com mission. in each
case, should Indicate the position and qualih-
cation of each commissioner appointed
Vacancies occurring after such appc int
ments would then be filed by com mission
er. with Ike qualification, as the outgoing
commissioner. Thus the manner in which
the board vas constituted. and the respective
n,sitons rf each pommissianar wauli al