Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-01-12
The Question Submitted.

The House of Representatives.
March 90, 1901, submitted the following
questions bearing upon the situation
to the justices of the supreme court:
l. Is the office of Fish and Game
Commissioner of the State of Maine,
or trustee of any State institution. an
office of profit under this State. +"
within the provisions of Section Ii OF
Part Of Article of the Constitu-
ton, which prohibits any person hold
ing an Office of profit under this State
from having a seat in either House
of the Legislature, during his holding
of such Office
= Is it necessary for a fish and
game commissioner, or such trustee.
To resign. or otherwise cease to hold
that Office. before he can Hbe legally
elected and qualify as representa-
tive to the Legislature?
8. If a person holding the Office Of
fish and game commissioner or such
trustee, is elected a representative to
the Legislature. and takes the oath
of office as such a representative, does
such person thereupon and thereby
cease to be a fish and game commits
sioner or such trustee?
4. Can member of the present
Legislature be legally appointed a
fish and game commissioner or such
trustee after adjournment of the
Legislature without first resigning
his seat in the Legislature?
The Divided Opinions.
Chief Justice Wiswell and Justices
Strout, Savage, Fogler and Powers.
declined to answer the questions sub
mitted ON the ground that a solemn
occasion did hot exist and the ques-
tions were not important questions of
law.
According to their opinion: Article
6. Paragraph 3, of te Constitution of
Maine does not require the Justices
to give their opinion upon ali cues
tons that may be asked of them by
either of the branches of government
named. They are not obliged and 1t
would not be proper for them To an
sWer questions of policy or eXpediency
or any questions other than import
ant questions of law 1t is equally
essential. in order that the justices
be required to give their opinion. that
the questions be submitted upon a
solemn occasion; and however inn
portant may be the questions of law
submitted. if it clearly appears to the
justices that such am occasion does not
exist, it is their duty To decline to
give their opinion in answer to such
"a question.
Justices Emery Whitehouse and
Peabody answered the questions sub
mitted in a dissenting opinion. They
declared that the language of the
constitutional provision under which
the opinion of the justices was re-
quired was explicit and mandatory
and left nothing 10 the discretion OF
the justices.
It was held by them that the office
of fish and game commissioner and
also the Office Of trustee of any State
institution, where the appointments
are made thereto by the Governor or
Legislature, or State officers, and 50
far as any compensation is affixed by
law 10 those offices are offices OF
profit under this State within Sec
ton II of Article 4 of the Constitution,
prohibiting a person holding such Of
fees from having a seat in either
House of the Legislature during his
continuance in such office.
In answer to the second question
they said: The Constitution, Article
4, Section II, does not declare that
the holder of an office of profit under
this State shall not be elected, to the
Legislature-shall.n not be eligible to
an election-but simply declares that
he shall not have d seat in either
House during his continuing in such
office. Hence he need not resign his
office before his election to the Legis-
lature. 1t is enough IL he resign it at
the time Of taking his seat in the Leg
isIature and such resignation may
only be by taking his oath or seat.
The right of the electors to elect
whom they will to any elective office
is to be construed literally, as
abridged only by the express terms Of
the constitution or statute and not
by mere implication. In answer to