Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1889-04-16
RocKLANp. April 9th. 1850.


Honorable Edpin C. Burietgh, Gorernor,
DEAR SIR Your communication of March
S0th. rogue sting ny opinion and advice, rela-
tive 10 several resolves passed by the legisla
ture of 1859 80, and the eligibility to ap-
puintmeut, Hereunder, of members of that
Legislature, has been care fully considered by
me. and | beg leave to respectfully submit,
the following As TO the eligibility of mel M
bers of that legislature to appointment as
Q, mmissioners, under the three resolves,
Resolve rela ing TO the removal of the
Name State Prison." Resolve TO provide a
commission To inquire into the system of tax
alton of other States and this State, and re-
port TO the Governor and Council; :" RE
solve authorizing the Governor to appoint a
commission to sci, ct and purchase u site for
an Insane Hospital" have to say, that an
sw, ring this question, in accordance with the
opinion of our own court and the weight of
authority. which feel bound to do, | answer
il in the affirmative, and hold that they are
ele gible TO appointment under these resolves.
This question arises under Art ", Part. 3,
Sec 10, of the Constitution, which reads,
No senator or represe ntative shall, during
the term for hich be shall have been elect
ed, be appointed to any civil office of profit
un Ter this State. which shall bave been ere
asd, or the emoluments of which increased,
during such term. except such offices as may
he filled by election by the people, provided,
that this prohibition shall not xtend to mem
bers of the first legislature" The question
il. would a commissioner appointed under
these resolves, hold civil office of prott?'
Uur court construed these words, in an opin-
ion. g Me. tsl, answering the question as
to whether the sgeucy provided for by the
following resolve, Was a "civil office of pro-
TT holding that II was not On this point,
the resolve (Chsp. 26, Resolves of 1922. }
read, The Governor by and with the advice
and consent of the Council, be
and is hereby authorized and en-
powered to sppoint one or more,
SCENTS whose duty it shall be to perform all
duties relative TO the care and pre- servstion of
the timber and grass on the public lands
and the sale of any part thereof. as shall
from time tosime be prescribed by the Gov
ernor of this State; and the said agents or
agent, shall receive such reasonable compen-
sa,ion for their services out of the proceeds
of any timber or grass by him, or them, sold
under the authority aforesaid, ard as the
Legislature shall direct" In Burns vs.
People. IS, ILL.,, 391, the court held, that
Commissioners to build State House, were
not Officers citing and rely ing upon, 3
Me. tSl. In Shepherd vs., Commonwealth,
|, kerg. and X. l, it was held. that Com
missioner who settled the compensation to
claimants to lands Ia Lucerne County. did
not hold an ''otiice of profit" though com
pensa,ion was provided for his services, the
court saying that lit was rather the eXecu-
ton of special commission. than . holding
Of an office language siugularly applicable
to the Commissioners under these Resolves
Where a judge Was appointed for the pur
pose of in :estigating the senuineness of GER
tain relics. and certifying accordingly. il was
held that ,uch an appointment was not ar
office" or public trust Washington vs..
Nichols. 50. n. Y AS, Persons, appointed
By Act of the Legislature to conduct and ex-
ecu,e aud msnsge a lottery grant, involving
large sum of money, to be used for public
purposes. mo compensation vas provided,)
were held not to be public officers" State
vs.. Plat, 4 Del. (Harr.) loo. In Under
wood vs.. McDufy, Is. Mich. 36l, the court
held that ''executive officers" were mot ere
atcd by the temporary nomination for q
single and transient purpose" and that
Every public office includes duties 10 be
performed constantly or % occasion arises
during some continuous tenure" which is
not the case With these Commissioners. An
that lis continuing one" Hill vs.. Bcy-
land, 20, Miss. 625. That the duty must be
q continuing one, and defined by rules pre-
scribed hy Law. we're held essential elements
of an office" by Chief Justice Marshall, in |
United States VI, NORRIS 2. Brock. l0S. In |
United Siates VI. Hatch, l. Pinney, ls2, ..of-
hcers" to manage and dispose Of land donai- |
ed to territory to aid in the construction of
. railroad. we're held not to be ''cisil ofAcess'
within the meaning Of the constitution. |
the court relying upons Me. AL. As in point |
On the other hand. Commissioners to con-
strncs highway. we're held to be "ot6cers."
but. mainly on the ground that they exercised
. part OF the functions of government
(The right Of eminent domain People ". |
Nostrand, rs. y. 7. SIS, Commissioners to
make geological suirey. we're held to be
''rsbtic oiacess,- but the once vas in one
ssaas esatinsiag sas. Pso'isioa being made