Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1889-04-11
Attorney Generals Reply.
RocKLANp. April sth, 1889.


. RocKLANr. April sth, 1889.
Hon. Ei,c,n c. Bsrie,qh, Gors-nor;
DEAR SIR The questions presented In
your communication of the S0th ult request
ing my opinion and advice thereon have been
carefully considered by me. and herewith
respectfully submit my conclusions.
A. TO the trst question "Will Chapter 3l3,
of the Public Laws of 1850, when il takes
effect. vaoate the offices of the board of rail
roai commissioners" have I, say. that in
my opinion 1t will not vscae the otiices Of
the present board of railroad commissioners
The Act referred to, is smendstor, of Section
ll3, Chapter 81. of the Revised Statutes.
Before the enactment of this amendment,
this section, SO far as the question in, olved,
is concerned, read The Governor. with the
advice and consent OF council, shall appoint
three railroad commissioners. who .hall sct
AS a board and held their Offices for three
years; two Of them shall be experienced in
the construction and manage ment OF railroads,
and one of them shall he an engineer" AZ
to this point. Chapter 3l3, Puhic Laws Of
1889. Sc ton |. (sll other provisions of the
new riatute being immatrrial On thi. poiut
reals, "re Governor. with the advice aud
consent Of the council, shall aproint three
| roilioad commissioners Who shall act asa
board aud hold their Office, for ,trce ycars;
ore ct III, m shall be learned In the Law and
siI oil ted and commissioned as chairman;
one of them shall be civil engineer Who
sbAll have hsd experience in the con, uuction
OF railroads; ard the third ,hal have had ,I-
| perience IN the management aud operation Of
railroads" The only change In the Law 10
the striking out Of the word. two of them
shall be experienced in the construction and
management of railroads and one of them
shall be an engineer, and inserting In lieu
| thereof. the words zone OF th,m shall be
learned In the law and appointed and com
missionsd as chairman; one of the M shall be
| a civil engineer no shn have had xpe rience
in the construction of railroads; aud tho
third shall have had experience in the
| management ~Dd operation Of railroads 4" In
other words. the law of 1889. prcscribcs spec
| ial qualifications for individual membcrs of
| the board, that were not so required, when
the members Of the present board were ap-
| pointed. The question is do these special
qualifications, apply to commissioners who
| hare been appointed, or TO the board a. now
constituted so A. to vacatc their officrs; or do
they apply only to commissioners 10 be appoint
| ed as vacancies occur and the board as thus
| constitu'edr IL the law prospective or retro,
| spective In its operations2 The rule by which
| such legislation is To be construed is familiar
and well settled Chief Justice Fuller. speak
ing for the United States Supreme Court
states it thus, Consultations Ms well ms stat
utes are construed to operate prosp, c,ively.
only, unless, on the face of the instrument or
| enactment the contrary intention is manifest
| beyond reasonable question - Shreveport
Cole, 80. l.. C. L. $50 .(l29, u. s 39,) Fol-
ger, j in the opinion of the court in People
vs.. Green, 5S, N, Y. 30i, says "A law may
not operate upon existing rights and liabilities
| without II in terms expresses such intention.
Though there is no vested right to an Office
| which may not he disturbed by legislation,
yet the incumbent has. in n sense a right to
his Office. II that right is to be taken away
by statute. the terms should be clear In which
| the purpose Is stated" "it il n rule con.
struciion to give statute prospective opera
tons only. unless its terms show a legislative
intent that il should have rtractive effect
the court said in, Garrick vs.. Chamberlain. ~
| III G2O. "A public Office canr ot be deprived
| Of the power conferred upon him for public
purposes by implication" Anderson vs.. Van
'faell, b. N. Y. 63l A Goyhor, he cannot
be deprived of the office, itself by implica-
| ton So also, Holmes VS. Wiltz, II. La.
t3o. Keeping this rule in mind. brief an
alysis of this law will clearly show IL to be
prospt ctive IN its operation. II does not in
| terms apply to the present board. II does
not abolish the Office, and create another. II
does not cay that the present board shall,
even possess. the special qualifications. II
| do not in innate that they do not p, SCI
them. IL does not even ,ay. that no COM
missioner shall act unless he possesses the
special qualifications
| j, does not 10 any way refer to the present
board, The title OF the Act IAN Act amend
atory of section ll3, Chapter ff'y-one Of the
lt,,. a -.
ter. relating TO Railroad Commissioners,
contains no indication of an intention to
sbridge the tenure Of Office Of the commits
sioners. The Governor is not even required
to appoint at any specific time. comm -sion-
ers whh the special qualifications The pro-
| vision as to appointment as to when they
are to be made, has not been changed. The
statute read, the Governor shall appoint
three Railroad Commissioners who shall act
as board and hold their offices for three
years" This Law reads precisely the same.
Bey ond all cavil this clause as the statute
stood. meant that appointments shouli he
made as vacancies occurred. No change Of
any kind having been made IN the language,
what is it that has wrought 40 fundsm sntal .
change in its meaning /. tber. any warrant
for holding that the neIt clause. providing
oClv for special quail hcs,ions in the ap-
ments are 10 be made, works so radical q
change in the meaning Of the pre- 'eding LAM
gusge, with no change IN its tenOrf 10 II
| ot more IN consOnance With reason TO az
.ume that the Legislature spprehsnded its
imI ort, aDd making no charge in ia terms,
intended 10 change in meanngf To vscate
these Offices the Law should have read shall
point forthwith" But 1t does not 80 real.
Had there been an intent to vacsfe these Of
fees. it would not have been d fficult to have
plainly expressed IL IN terms about which
there could be mo reasonable question"
The single word forthwith - in the proper
place. sould have accomplished the result.
II the Legislature intended to deprive these
commissioners Of their Offices. ~ba, reason
can be given ~hy this purpose should not he
, declared 10 the Act in "clesr and unmi''ak-
able terms. making the intent manifest be-
, ond reasonable question:" why should
not the terms" be clear" in which the pur-
pose is statedf" II is too obvious for argu-
ment tha, this Act of 1859 does not in
terms" declare any such purpose. II has
any such effect, it is accomplished by doubt
ful i'm Pile alton and iDdirecton. There is every
reason Why this result should not be thus &C.
, complished. II the Intent" 10 not clear"
. and "manifest beyond reasonable doubt, !"
:. how can we be assured that the members Of
a the legislature understood its purpo,e1 Did
its title, or terms. contain any clear notice
manifest beyond reasonable question to
. the present board that they were being de-
a prived, without notice and hearing. summari-
, ly and arbitrarily, Of valuable rightsf
While I do not hold that II is, or is not COM
|, petent for the legislature TO sject an ofiicer.
4 by legislative act, from an Office created by
the legislature, without notice or hearing, IL
10 sell to remember, as illustrative, at least.
Of the spirit OF the Law, that the Consultation
al provision. regulating removals from ONCE,
While providing that every person holding
!. any Office" may be removed by address, also
: provides But before such address shall pass
:. either house. the causes Of removal shall be
stated and entered on the journal Of the
D.. house In which it originated, and . copy
thereof served on the person in Office, that
be may be admitted to hearing in his de-
e Tense" Con. Art. TX Section 8. Grave
/. doubts may well be entertained, whether IL
;, is competent by mere act Of the legislature
to deprive an officer Of his Office but. to
y hold that an act Of the legislature. deprived
q any Officer Of his Office, when il did not on
y its face, declare such . purpose beyond
reasonable question" thus depriving him Of
', notice, and Of an opportunity for . "hearins
II r. at h. nd