Daily Kennebec journal., 1914-02-27

between describing misfeasance and
the law forbids; the other failure to
act, where the law commands an act.
The former consists in doing some
thing; the latter consists in doing noth.
/ ing; in the former there is some act
! to specify: in the latter no act TO spec
| ify. There is no act of any kind.
/ There is habitual and continued omis-
| sion to act: q course of conduct;
habit of wilful or corrupt refusal TO
| perform the duties required by the
| statute. 1t is readily apparent that 1T
| is impossible to particulariZe contin-
ual course of non-action. What per-
son does not do can be described only
in general terms, in a negative way.
Pertinent to this condition of things
! is Commonwealth V. Pray, 13 Pick. 359,
| in which the court say: Wherever a
crime consists of a series of acts, they
need not be specially described for it
| is not each or all the acts of them
selves, but the practice or habit which
produces the principal evil and con-
stitutes the crime" Then follows sew
eral cases as Illustrations of this rule,
one of which seems to be peculiarly
pertinent, for ii involves neglect 1t
is said: ut is made the duty of towns
to keep in repair highways within their
| limits and for neglect of this duty
they are liable, not only to indictment,
but if any individual injury occurs by
reason of it, to a civil aetionA In in
dictments and declarations of this stat
ute. which are of almost daily occur
renee, the practice has never been to
set forth minutely the defects of the
highway. But general allegation,
that certain highway is out of repair,
ruinous and unsafe, has always been
deemed sufficient" The same rule is
found in Stratton Y. Commonwealth 10
Metcalf, 217. the court saying: I'VE
have no doubt. in looking at the pres
! ent case. that from the very nature
of the offence here charged, it being
series of acts or habits of life that
constitutes the offence of being com
mon railer and brawler, it is properly
set forth by the same general descrip-
tion of the crime charged. that would
be good in case of the common barra-
tor of common scold."
We have thus far considered the spec
ifcation in the light of the charges
necessary to be set out in an indict-
ment or complaint But ii was not in
cumbent on the Legislature, under Ar
particularly required in an indictment.
In 70 Guden. supra. Throop Pub. OFF.
Section SS9: Burt ct al V. Iron County.
10S Mich. 523; Cyc. 90. 1909 d. note 20;
Andrews v King, II Maine, 224.
We now come to another objection TO
the action of the Legislature namely:
THAT the removal of officers by address
under Section of Article IX of the
Constitution did not contemplate the
removal of the officer for official mis-
conduct" If this contention could be
established. the action of the Legisla-
ture in the case before us would. of
course, be void. 1t would be without
jurisdiction under the Constitution.
But thescontention is untenable Where
this question has been passed upon by
the courts, it has been held by all the
authorities so far as we have been able
to discover, that the removal OF ofti-
GERS by impeachment for misconduct in
office was not an exclusive method, but
concurrent with other methods of re-
moval which might be provided for the
same cause Throop on Public Officers,
Section 400. In Commonwealth vs..
Hartman. already cited. this issue was
sharply raised and eXhaustively consid-
cred by the court. Not only is the
provision of the Constitution. author
iZing impeachment and address, care
fully considered but the history of the
events both in England and Massaehu-
setts, which led up to the adoption of
the provision. is reviewed. The opinion
states the contention of the defendant
as follows: THE principle ground up
on which he founds his claim is that
the charges upon which he was removed
We're charges of misconduct and NAL
administration in office, for which he
was liable to impeachment, and that
the constitutional power of removal by
address does not include the power to
remove for offences which are impeach-
able This question is an important
one" But this contention was over
ruled as follows: The language is
broad and general, in its terms ii in
cludes a removal for any cause which
is deemed by the Legislature and ex-
ecutive departments sufficient. If ii
had been intended to exclude from this
provision the power TO remove for mis-
conduct in office. leaving that to be
dealt with by impeachment exclusively,
Il would have been so stated. Neither
this article nor the article on impeach-
ment contains any indication that the
power of impeachment was to exclude
the power Of removal by address. We
must give to the proviso the broad
meaning which its language imports"
The language in our Constitution is
equally broad and general, as a COM
pariSon will show.
1t hardly seems possible that the
/ trainers of the fundamental law upon
/ this subject could have used language
so loosely as the construction of the
relator would seek to imply On the
other hand, it rather seems to us that
the language is so plain that it is diff
struction can apply other than the
Fundamental rule that words and
1 phrases should be construed according
to the common meaning of the lam
single point remains to be con-
| sidered, point raised neither by the
| pleadings nor in argument. 1t never
| theless should be examined.
| 1t is contended that, as the conStitu-
tional amendment. commonly known as
the initiative and referendum adopted
/ by the people under Chapter 121 of
| the Resolves of 1907 provided in Sec
tion 16 that mo act or joint resolution
of the Legislature, except such orders
and resolutions as pertain solely to
! facilitating the performance of the bus
mess of the Legislature. etc. shall take
effect until ninety days after the recess
of the Legislature passing it unless in
case of emergency" etc, and as the
address proceedings in the case orig
mated in joint resolution of the Leg
! islature. it follows that this resolution
could not take effect until the eXpira-
tion of 80 days from adjournment.
This would permit the securing of a
written petition containing at least 10,-
600 names, addressed to the governor.
requesting that the resolve be referred
to a popular vote and would thereby
suspend the effect of the resolution un-
til 80 days after the governor shall
have announced by public proclamation
that the resolution has been ratified
by majority of the electors voting
thereon at a general or special election.
| Section II.
In other words. it is claimed that adj
dress proceedings for the removal of
a public officer are. under the consti-
tutiona1 amendment providing for a
referendum, held up at the very in
ception because the resolution on which
they are based cannot in any event
take effect until 90 days after adjourn
ment.
Can this be so? In our opinion such
a contention is without foundation.
1t seems to proceed upon the theory
that merely because the word "reso-
luton" or resolve" is used in the con-
stitutional amendment, ald a resolution
WAS adopted by the LEGISLATURE as the