Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1896-06-04

Daniel j. Donovan, the respondent, tes-
titled as to his appointment and qualifica-
tion on May 4, and that he had since act
ed as city marshal. As to the difference
between "acting city marshal" and "city
marshal" he said one is confirmed and
one is not. He was acting city marshal
until another could be appointed, when
he would step out.
These were all the witnesses examined.
Mr.. Stuart, for the respondent, in his ar
gument claimed that the appointment of
Mr.. Holmes by Mayor Dutton, and sub
sequent confirmation in 'job lot" with
other officers were not sufficient to make
him legally qualified officer He fur
Their argued that, admitting the legality
! OF Mr.. Holmes appointment, Mayor Gerry
had right to remove, and that having
removed him he had the authority to fill
the vacancy by appointment.
Mr.. Hamlin, for the prosecution, said
they based their case on the legal title of
Mr.. Holmes to the office. At the previous
hearing the court did not consider it nee
essary to render a decision in regard to
MIR. Holmes, but the respondent had filed
an answer which seems to make it very
material that the question of Mr.. Holmes
title to the office be determined. As to
the difference between city marshal,
the prosecution claimed that while there
may be a mere technical distinction, there
was no substantial difference. The re-
spondent had testified that he had per-
formed the duties appertaining to the
office OF city marshal.
Mr.. Hamlin said further that while
this was a criminal offense, the State had
not asked and did not wish that a fine be
imposed, but he would say, that if judg-
t uent was rendered for the State in open
court that the State would ask for heavy
damages, with fine or imprisonment or
or both.
Judge Whitehouse, in his ruling in
court, said he regretted hat it was neces-
sary for him to again he called in this
matter. At the previous hearing it did
not seem necessary to pass upon the title
OF Mr.. Holmes, but as now presented it
did justify him in passing upon his title
to the office.
He said further that in view Of the
fact that this lisa matter OF public concern,
he deemed it proper to confer with other
justices Of the supreme court and it was
the unanimous opinion that the provi-
sions of a general act will not override
the provisions OF a special act, and that
the city charter of Ellsworth should pre-
vail. 1t is time that the act of 1866 was
renewed, but only for the purpose of add
ing an amendment.
"Therefore it seems to me that the
rights OF the parties, the questions in
VOWED and the rights of the public must
toe settled in accordance with the proyi-
sions of the city charter. The charter
says that the mayor and aldermen shall
appoint and when sufficient cause exists,
may remove officers.
LAS to the question of Mr. Holmes IL
tie, cannot see any reasonable ground
for the claim that he IS not legally emit
tied to the office.
II therefore hold that the action of
Mr.. Gerry for the removal of Mr.. Holmes
was wholly Intellectual because not done
by and with the consent of the aldermen.
The action of removal as the action of APP
pointments must be by and with the con-
sent of he board of aldermen"
Judge Whitehouse then rendered judg
ment in open court in accordance with
the following written decree:
That the relator, Thomas J. Holmes,
was duly and legally appointed city
marshal OF said city OF Ellis" ortiz on the
sixteenth day of March, Il. q. 1896; hat
said relator duly qualified for said office