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

SHOW HcSdH, Me-, Jan. I'll lie law
passed by the Maine Legislature of
1905 that the Governor may create the
office Of special attorney for the State
to enforce the law against the manu-
facture and sale of intoxicating liquors
was declared unconstitutional by re-
script handed down today from the
Maine law court The rescript was
written by Chief Justice Emery in the
case of State of Maine BY Information
VS.. Amos *. Butler, which was entered
at the March term Of the supreme
court for Somerset county last year
and was argued at the June term of
the law court at Bangor
Attorney Butler was appointed spe-
cial attorney by Governor Cobb Jan.
4, 1908 and was recognized by Judge
Cornish Of the supreme court four days
later when he presented his commits
sion and a letter from the Governor.
This was the first and only instance
in the history of the State where
specia! attorney has taken the place Of
the county attorney in the enforce
ment OF the liquor law.
County Attorney Thomas j. Young
of Scion, who was superseded, con-
tested the action of the ground that
under the common law no person has
the right t. interfere with an official
elected by the people. He Instituted
quo Warranto proceedings ana the
matter was taken at once to the law
court as a test Of the constitutionallty
Of the Legislative act.
The opinion and rescript follow:
State of Maine, by information in ma
ture OF quo Warranto vs.. Amos *. But
Ter. claiming authority as special at
tornev for the State in Somerset coun-
ty.
opinion. Emery. c. j.
We think the validity of the respond
ent's claim to exercise the government
al function of public prosecutor In
Somerset county will be best deter
mined BY looking straight at the Ian
guage of the Constitution and of the
Statute. and at established principles
and freely allowing them their full
natural effect.
The people of Maine in organizing
their government as State vested
the legislative power of the govern
ment in a body "to be styled the Leg
! isiature of Maine" Cart. ", Part L.
Sec y, and did not confer any such
power on any other person or body
| ard did not authorize the Legislature
| to do so. 1t follows that the Leglsla-
ture alone can exercise the legislative
power and alone is responsible for
| its wise exercise. and hence cannot
| transfer any OF the power nor any OF
| the responsibility to any other depart
ment or person. Says Judge Cooley IN
| his constitutional Limitations (bth
| Ed Page 1871: zone of the settled
! M Xir7s in constitutional law is that
| the mower conferred upon the LeSlsla-
| ture to make laws cannot be delegated
| by that department to any other booy
| or authority. Where the sovereign pow
| or of the state has located the author
| ity. there it must remain. ana by the
constitutional agency alone the laws
must be made until the Constitution It
self is changed. The power to whose
| iudp,ncnt, wisdom and patriotism TINS
high prerogativc has been Entrusted
cannot relieve itself of the RESPONSE
| biIitv nv choosing other agencies upon
| which the mower shall be devolved. nor
can # substitute the judgment, wisdom
and PATRIOTISM CT any other body Tor
| those to which alone the people nave
seen fit to confide this sovereign trust.
The PROPOSITION needs no other citation
or authority ard we do not find 1t any
| where doubted.
Further. the people in their Consul
tuition expressly divided the powers OF
tho Government into three departments
the legislative, executive and Judiciai'
and declared that mo person or per
sons belonging to one of these depart
monts shall exercise any of the powers
rropcrly belonging to either OF the oti-
e,s oxcept in the cases herein express
w directed or permitted" Art. Ill secs
.. Not only therefore. is the LeglsAa-
tire not authorized to transfer any Vi
it's legislative power and responsioiil'S
but it is expressly forbidden TO Trans
fer any part of them to person y,
persons exercising either executive OF
judicial functions,
Another proposition is undisputeu.