Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-06-14
STATE HOUSE.
Opinion From the Assist
ant Attorney General
On Granting Commissions to
Aliens to So|emnize Marriage.
Arrival Of Reed Portrait Expected Soon---
Other Capitol Matters.
STATE HOUSE CALENDAR.
Next Meeting Of Governor and Council
Friday, June %, at 10 A. M.

| Attorney General Warren G.. Phibrook
on the question whether or not COM
missions to solemnizc marriages in the
State of Maine should be granted to
| citizens of foreign countries. which has
| just been submitted to Governor Cobb
will be of general interest:
Waterville, Maine, June ., 1906
| Hon. William T. Cobb, Governor of
| Maine, Rockland, Me.
| Dear Sir
| | am in receipt of the correspondence
relating to the request of Rev J. A.
| Winfield for a commission to Solemnzc
| marriages in Maine, and honoring me
with your request that l express my
| views as to the propricty of issuing
| such a commission.
1t appears from the correspondence
| that Mr. Winfield is not an American
| citizen nor even a resident of Maine.
| This l assume to be an unchallenS d
fact. The question then is whether N
alien and nonresident of the State
| should be commissioned to solemniZc
marriages in Maine. In my view of the
| case the question is easily Invisible into
two parts.
First, is a minister of the gospel COM
| miSsiOned to SOlcmnize marriages act
ing in the capacity Of a public officer?
| Second, may an alien and non-reSi-
dent hold public office within this
State and exercise the functions of that
| office?
| am not aware that the supreme
| court of Maine has ever passed upon
| the first branch of this question, nor
am | aware of any act of Legislature
| which controls the situation. One Of
| the New England States. however, for
whose court we all have respect. has
| given distinct ruling upon the subject
| in the following unequiVOcal language:
! "A clergyman in the administration
| of marriage is a public. civil officer"
| Goshen V. Stonington. 4 Conn. 209. 10
| AM Dec. III. See also Bouvier'S
Dictionary, Rawles Revision, under
| Officer"
AS to the second branch of the qucs-
| ton:
| 1T is an acknowledged principle Of
popular government that it is in
sttuted by the citizens for their liberty
and protection. and that 1t is to be
administered and it's powers and func-
tons exercised by them end through
/ y.
alien is; not eligible to nffi""." Am. *
Eng. Ency. Of Law. Vol. -, i. lnl. Isl
| Ed.
There are not wanting iESt'nc"* even
| in our own State where an alien has
| been elected to public Office and has ex-
| erCiSed the functions and discharged
the duties of that office and our court
| notably in the Opinion of The Justices
| 20 Me. $50. has said that such an one
| would be an officer de fdcto AMI
| clothed with apparent right"
| This, however can hardly be con-
| strued as authorizing or encouraging
the knowing election or appointment to
| office of an alien.
| Here again. | am not aware that the
ISupreme court of Maine has ever pasSel
upon the second branch of this ques-
| ton. nor am | aware OF any act Of
| Legislature which controls the situation
| Other courts of final jurisdiction have
said as follows:
TT is an acknowledged principle,
| which lies at the very foundation. and
| the enforcement of which needs neither
| the aid Of statutory or constitutional
enactments or restrictions. that the
government is instituted by the citizens
for their liberty and protection. and
| that il is to be administered and It's
powers and functions exercised by
| them and through their agency
State V. Murray 2Sth Wis. 96. 9 Am.
| Rep 4S9
| In that case an alien had been elect Ell
to the office of sheriff and had entered
upon the discharge of the duties Of tn at
Office. and under those conditions in AN
action of quo warranto, the court held
that he could not lawfully hold office
"AIl political power is inherent in the
| people and those who are not of the
people can have no share in it. The
people are such as are born upon TIL"
soil. by and for whom, in the first place
the government was ordained. and such
persons of foreign birth as may elect
to assume the obligation Of citizen
Ibv complying with the laws Of naturali-
cation as enacted by Congress. If they
desire to secure political rights, they
must cease to be aliens, and become
citizens IN the mode there prescribed
Until then they can neither vote no"
hold office: they can neither choose nor
be chosen, for that is to exercise
political. power. and they are not of the
people who alone can exercise it,
IWalther v Rabbit, 80 Cal. 1S5.
| | am therefore constrained to tho
lyiew that the commission referred t.
lin your correspondence should not be
ISSUED to Mr. Winfield. I reach this
lconclusion with some regret because it
Iappears from the correspondence such
commissions have sometimes been
Issued and that clergymen on the
Maine side of the border are frequently
empowered by the courtesy of the
Provincial authorities to perform the
marriage ceremony in New Brunswick
| return to you the correspondence in
the case and trust that my views may
be correct and that I may have been OF
some slight assistance to you in the
matter.
With profound respect, I have thu
. honor to be.
Yours very truly,
WARREN c. PHILBROOk.