Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1916-10-05

wallace Harmon, to test his right and
title to the Office of Judge of the munich
pal court of Saco.
The substance of the information. tlei
jan IA. 1913. is. that the relater was duly
appointed Feb. 2, 1909, by the Governor
and Council. judge Of said court and was
commissioned as such for a term of four
years: that on Nov g. 1912, the Governor
ana Council determined that the Office of
judge or said court was vacant by reason
OF the abandonment of the office by the
relator, and by reason of his failure to
reside in the city of Saco as required by
the charter. of said court; that on Dec. 10,
1872, the Governor and Council appointed
the respondent to be Judge of said court
and he was commissioned for the term
of four years: and that since Dec %. 1912,
he has used and enjoyed and continues
to use and enjoy all the rights. privi-
leges and benefits belonging to that of
fee
The controlling question presented is
fee at the time Of the respondents ap-
pointment thereto.
Held
l. The proceedings being prosecuted In
behalf of the State to determine by what
authority the respondent is holding the
public Office in question, it is i:nmaterial
that the REALTORS term of office expired
by limitation on Feb. l. 1918. If the re-
spondent is wrongfully holding the office
there should be Judgment of custer
against him notwithstanding the relator
Is not entitled to the Office
2. Under the constitution the Governor
with the advice ard consent of the Coun-
Gil has authority TO fiji by appointment
a judicial Office when a vacancy in such
Office exists.
3. The tenure of office of judges of nu-
nicipal and police courts is fixed by the
constitution to be "for the term of four
years"
4. The Governor has no authority,
either alone or with advice.nf the Coun-
Gil, to remove judicial officer whose
term of office is fixed by law, except
ION the address of both branches of
the Legislature"
:, 8. The determination by the Cover
nor and Council on November 2S 1872
that the office of judge of the municipal
court of Saco had become vacant by
reason of the abandonment of it by the
relator. and by reason of his failure to
reside in Saco, did not create = vacan-
cy in that Office. If, as matter CT
fact, the office was then vacant the
Governor and Council We're authorized
and required in furtherance of the pub
lie interest to fill it. Otherwise not
s. The abandonment of an office is
ipso facto vacation of it. because the
abandonment necessarily implies a VOL
untary and Intentional disclaimer and
surrender of it by him to whom it per-
tains. which in it's effect is like a res
ignation Of it.
7. But the official neglect of the
incumbent Of a public office. or his
misconduct therein, although CONSTITUTE
ing just and legal grounds for q for
fixture OF the Office. do not produce
vacancy until it has been tudically de-
tcrmined and declared that the incum-
bent is guilty thereof and that he has
thereby forfeited his right to continue
in the office; and the reason is that the
official neglect and misconduct which
would sustain a forfeiture do not estab-
lish, as an Inference of fact or law. that
the incumbent had voluntarily or ac-
tually relinquished the Office
g. The Office in question did not be-
come vacant because the relator had
forfeited it by failure to perform its
duties or by any misconduct therein,
since no adjudication of that question
has been made by any tribunal having
authority to do so.
3. public office may be abandon
ed by the incumbent so that a vacan-
cy in the office is thereby created. To
establish such abandonment the proof
must show a voluntary and intortion-
al REIMBURSEMENT of the office by the
incumbent. Such intention is a cues
ton of fact, ard ma. be inferred from
the party's acts. If his conduct is such
as to clearly indicate that he had re-
linquished the Office, an intention to do
so may be imputed to him.
10. The provision in the charter of
the municipal court ct Saco that the
judge of said court shall reside dur
ing his continuance in said Office in
said Saco." means that the judge of
that court is required to actually re-
side in Saco. in the sense of being
personally present there substantially
all the time during his continuance in
said office. But il is not to be under
stood. of course that temporary alb
sccncc from Saco by the judge of said
court. for Q reasonably limited time
on business Or pleasure, would consti-
tutc failure to reside there within
the meaning of the charter.
IL. The incumbent of an office may
abandon it so as to create q vacancy
therein by removing from the State,
county, OF other district to watch the
officers residence is restricted by the
law Of tho Office.
IL. The evidence justifes a fndng
that about the middle OF July, 1912, the
relator voluntarily and Intentionally
moved from Saco to Piscataquis coun-
ty there to give his entire attention
to a new employment, intending to
continue in that employment SO long
as it was open TO him, and was salts
factory to him, and having no filed in
tention to return to Saco to reside at
any definite time. if at all: that he
did not return to Saco to live during
the rest of his term of office and for a
long time thereafter at least:
and that from and after June or July.
1912. he was voluntarily personally alb
sent from Saco practically all the time,