Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-01-08

office before appointing an incumbent.
This evidently appeared to the Gov
ernor and his legal advisers the only
reasonable Interpretation. In his com
mission to the respondent he first de-
clares that he (not the Legislature
does thereby create" the office, ana
then goes on to appoint the respondent
to fill the Office "as above created
that is, by himself.
The respondent cites cases to the ei-
feet that the Legislature may provide
legislation for future specified contln-
gencies and confer upon the executive
or other persons the power to deter
mine when the specified contingency
has arisen; also that the Legislature
may enact a statute not to go into OPP
GRAFTON until specified facts or condl-
tons are found to exist and may en-
power the Governor to decide upon inc
existence Of such facts and conditions
III this case, however, the Legislature
has not made the existence of the office
contingent upon specified facts, or con-
ditions, or contingencies, being found
by the Governor to exist. 1t leaves the
existence or non-existence of the office
wholly to the Governors discretion.
True, before creating the Office, ne
must invite the county attorney TO
show cause to the contrary, but he may
wholly disregard whatever the county
attorney may show as cause and still
create, or not create. the office at his
sole and unlimited discretion. He is not
required to find any fact. He need not
give any reason or have any reason.
mi f<>l IN cd
pleasure He may even create 1t for the
purpose of blocking the enforcement
Of the laws by faithful county attor-
ney True no such action by Cover
nor is to be anticipated, and true also,
that the Legislature undoubtedly as
sumed the Governor would use the
statute only for the better enforcement
of the laws, but he could use it to de-
feat enforcement and effectually, If the
statute be valid The test is what he
could do, not what he probably or un-
doubtedly would do.
It is this discretion given the Cover
nor to create or not create the office.
that distinguishes this case from those
cited by the respondent, and that vi
tiates the statute. There are cases IL
Illustrative of this distinction and Vi
tiation In Gilhavly VS.. City of Eliza
beth. 66 n. ]. L. 484, 80 At. HOG, the
statute provided that "upon the petit
ton of not less than 100 voters of any
city, the Governor may in his dlscre-
ton appoint a commission" to divide
the city into wards. The statute was
held unconstitutional as being an at
tempt to delegate legislative power to
the governor. The court said: "That
this law commits to the Governor the
determination of public policy control
ling the government of cities does not
admit of controversy as he is given
an absolute and unlimited discretion in
accordance with no facts to be ascer-
tanned by him, and upon no principle
or terms of expediency declared by the
Legislature.' This language states the
principle applicable to the case at bar.
In King VS.. Concordia ms. Co., 14O
Mich. 25S, 1903 n. w. GIG, the Legisla-
ture undertook to empower commits
sion to frame a standard insurance
policy and to make such changes in 1t
from time to time as justice and equity
might require. Held void. In Noel VS..
The People, 1871 III, 5s7, 107 n. w. 500,
the Legislature undertook to empow-
err PICARD of Pharmacy" to grant in
their discretion permits to sell proprle-
tary medicines. Held void as investing
the board with an arbitrary discretion.
In Mitchell VS.. state, 1874 Ala. 1892, 80
So. 6S7, the Legislature undertook to
authorize board of commissioners to
suspend dispensary for the sale of
1-nid Tn State Rogers
II Ohio ST. POP, &c n. S. 461, the Legis-
lature undertook to authorize the
Judges of the court of common pleas
to fix the salaries Of county surveyors.
Held void on the ground that it had
not prescribed any rule, but left the
matter to the discretion of the judges.
In Noel VS.. People, 1877, III, 5S7. the Leg
islature undertook to transfer to a
pharmacy board the power to decide
what drugs should be sold by druggists.
Held void. In Fogg VS.. Union Bank. 60
Tenn, 435, it was held that the Legis-
lature could not empower trustees of
insolvent banks to fix the time for the
payment of claims. The foregoing cases
are Sufficient for illustration and au-
thority. We find no case holding that
the Legislature may leave any of its
legislative powers to be exercised at
the discretion of any other person or
persons.
The respondent urges as we'll set
tied doctrine that when the intention
of the Legislature is clearly expressed
in an enactment, the court should give
effect to that intention and not defeat
it by adhering too rigidly TO the letter
of the statute or to technical rules for
statutory construction, and that in
some cases it may give effect to such
intention even in direct contraven-
ton of the terms of the statute. An es-
sental element in the doctrine invoked
is that the intention should clearly
appear in the enactment: otherwise the
terms cannot be disregarded In this
case. however, the language of the
statute clearly indicates an intention
to leave the question Of creating, or not
creating the office to the discretion of
the Governor THE Governor may
create to continue during MS pleasure
the office of special attorney" etc. Lan-
euage could hardly be found more in
dicativc OF an intention to transfer
the power and responsibility to the
Governor. A contrary intention. even
if it existed, is not expressed in the
statute, hence the doctrine cited does