Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1889-04-16

FIR removals. and filing vacancies, and in
that case the cocrr intim stsj thas there vas .
distinctisn between such Offices - they
we're considering, and tie tern "ofAce-
which requires more strict construction,
~ used 10 . CONVENTIONAL clause. Hall ".
State 80, Wis. 20. In Commonwealth W.
Evans. "a. Pa. Sc. 124, m agent appointed
e. collect claims against the United States,
vas held to be public officer, within the
provisions Of = statute excepting public off,
cers7 from the operation Of the lav aboiish-
Jog imprisonment for debt. This vas Q case
where the agent vas seeking TO evsde the
payment Of public funds, in his hands, and
the case 10 controlled by tbs, consideration.
These three cases are. therefore. unlike the
Commissioners 20 be appointed nnder these
Resolves, and have been unable TO ind any
case where. with parallel facts, such Com
missiouers have been held TO be public
Ulcers" or '-civil officers" II will be PSF
eeiyed that several Of the above cases. that
are In point, rely upon 3 Me. 4si, and find
this case very frequently cited a authority
-hen office" or civil Office" is being de.
fined. Ii difficult TO establish any sub
stAntial distinction between the agents in
that opinion, and the Commissioner here.
Tha, they are called agents in one case,
AMI Commissioner" In the other, 10 not
material, as it 10 the Office or position itself.
and not the name of the Office or position.
that 10 Of essence. Inasmuch, however, As l
do not feel satisfied with the construction
adopted by the court 10 that opinion. and If
I am to advise, cannot advise the appoint
mepts inquired about. though they may be
legally competent, onght perhaps, to give
ny reasons. In 3 Me. 4si. in answering the
question then before them, the court base
their whole opinion upon Art III, Sec. 2, OF
the Constitution, which reals, NO person or
persons belonging to one Of the departments,
(EIecutive, Legislative, or Judicisl,)
shall exercise any of the
powers, properly belonging to either Of
the others. except in the cases herein ex-
pressly directed or permitted" with this
proyi,ioL in view" the court say lit seems
proper 10 give such a construction Of the
Constitution A. will be necessary to effect the
object contemplated, which was to preserve
the powers above mentioned, entirely dis
tinet, except in the cases specified" Again
they say. by thus aseertaining the object
which the trainers Of the Constitution had in
view, in the distribution of powers. or divis-
ion of the sovereign power, we apprehend
the true construction to be given to the terms
office" and offices" as used in the constitu-
ton may also be ascertained." The purpose
to keep the powers above mentioned en-
trels distinct is the only purpose expressed
In the opinion. They treat this throughout
as the only "object contemplated" The
provision under hich they were answering
the question has already been quoted, Art
] w, Part III, Sec. 10. This opinion treats
these two provisions of the Constitution rs
having one and the same purpose, as identi-
cal 10 meaning They do not suggest any
dist action Of purpose and intent between the
two. They invariably use Art. III, Sec. 2,
as the standard for the construction of Art,
" Part III, Sec. 10. Each provision is ex
pressly prohibitory. Are they both intended
to prohibit the same thing? think not. l
think there is material and important dis
tinction between the purpose and intent Of
the two provisions. The earlier is founi n
der the Article entitled distribution of
Powers Its only purpose is to preserve
the powers" distinct The latter is
found under the Article entitled d" Legislative
Power" IL identical in meaning with the
earlier, the earlier covered the whole ground
and the later was an unnecessary repetition
do not think the later is a federation OF
the principle declared in the earlier. 1t is
not to be assumed that in so important an in
strument as the Constitution, such unneces-
ssry redundancy of expression would be toll
Grated The purpose and intent of the later
is separate, distinct, indepe ndent, and more
far reaching than the earlier. 1t does more
than prohibit the person belonging TO one
Dc pa tment' from exercising any of the pow
ers be longing to another 1t prohibits a mem
Der of the Legislature from being appointed
20 any civil Office of profit" created by the Leg
stature of which he was member, not only
while he elongs to one department.; bu'
during the term for which he shall have
been elected" So that, if such member
ceased to "belong to one department BY
resignation of his legislative office, he could
not be appointed TO any such "civi office OF
profit" until the expiration of the term fol
which he shall have been elected" Ii i.
clear then, that the purpose of the later clause
is not to prevent the improper exercise OF
power in one department by those belongin,
to another. but to prevent the legislative crea
ton of otiices, to be filed by members of th'
Legislature creating them This purpose il
not recognized in this opinion The court d,
not treat it as the OBJECT contemplated
Instead of giving the terms civil officer
strict and technical construction, as the cour
90 in that opinion. in order to effect the OBJ
ject contemplated" by the earlier provision
as to the distribution of powers, | think the
should receive a broader and more liberia
construction. in order to effect the obiec
contemplated" by ,he later provis on, in which
the term occurs, and which has q differen
purpose Again, the language is, civil ofiic,
of profit" These words should be construed
together. 1t is obvious that the words 30
profit are of special significance, and shout,
be given great weight in constituting the Who'll,
clause. If it was an evil, and it is so pro
l.. -,Ix. l.
the legislature to participate in the creation
of an office Of profit to be filed by himself
during his term, /; does not require argument
to show that the element of profit" furnish
ed the strongest incentive to the abuse Of ans
power the legislature might have had in thi,
direction Itis not so much "any civil office, :
per Sc. that makes the inhibition necessary
but the profit issuing from the office The
underlying idea seems to be that no egisa
tor, shall derive any personal profit" from
his action as a legislator. Whether an office
is a "non.inuing one, involves an exercise
of portion of the sovereign power" iii
duties are to be performed under the sane.
ton of an oath. involves carrying into
effect any of the standing laws of the State :
/ (sll elements held to be necessary L
constitute an office or otherwise, is OF
slight consequence, so far ~ the mischief
sought to be prevented is concerned. while
the element of profit" issues from it. A
place" an agency" commission OF
an employment" is equally within the
principle involved in the mischief. differ
ing perhaps in degree as is the mos,
technical "civil office if the element OF
profit, is alike incident to each. 1t is not %
much whether the profit continues for 4
longer or shorter time, is greater. or is less
it is still there. 1t is in the fact of profit
that the evil turks This element of pro.
1T as tending TO aid in ascertaining the
object contemplated" is entirely overlooked
in this opinion. In constituting 3 statute
which prohibited increasing the salaries OF
those now in office" the court, in Rowland
vs.. New York, 50, n. Y. 1872, said, in holding
that an attendant on Supreme Court was
within its provisions, Its object was to
limit or cut down expense; and the evil was
an increase of compensation. The fruit and
profit is in its sense and spirit; and so rend-
cred includes the plaintiffs case. For,
whether We consider the nature of the matter
detailed or its obvious purpose, it is reason
able to suppose that the legislature had in
mind when selecting the language above
quoted sill persons who under any nan
were the recipients of salaries from the
State, and in this sense the &C,
should be construed. In order to
give effect to the object
contemplated, in its sense and spirit" by