Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1921-01-13

I
seven after a vacancy, directing the
Law Court to be held by majority
and the opinions to be concurred in by
| at least four.
! When in 1893 our State Ear Asso-
citation again took up this question of
a separate Law Court, these Acts of
1855 and 1855 and the attempt of the
| Legislature to create two divisions
were thoroughly discussed. Two of
| the attorneys who had personal
knowledge of those early proceed
| ings were still with us and taking ac-
| tive part in our deliberations, Hon.
| Josiah Crosby of Dexter and Hon.
Josiah FL. Drummond of Portland.
| 1t appeared from the arguments
| that the constitutionality OF the Act
of 1855, creating by statute two divi-
sions of constitutional Court
! though never tested was seriously
doubted, because it took away from
four of the Justices powers which
| belonged to all equally. That was
the reason urged against the Act by
Governor Wells in his inaugural
| message of 1856. He called attention
to the. fact that all the Supreme JUS
tees had equal power and authority
under the constitution and yet four
out OF the eight had been made
Law Court three could sit and a
majority of two could render. the de-
cisions.
The removal of Justice Woodbury.
Davis by address in 1856. created the
vacancy provided for in the act of
that year, reducing the number to
seven.
The fact is that politics ragged
Hercely in the ante-bellum decade Of
I1S50-1S60. This State was a battle
ground, with the victory now on one
| side and now on the other Even
the membership of the Court did not
| escape the effects of this partisan
conflict, Much of this legislation and
reorganization was doubtless due to
political causes, and especially do we
see their effects i'll the refusal to re-
appoint Justices at the end of the
seven year period if the appointing
power happened to be OF the other
political party. Many single termers
appear between 1913 and 1860 This
was quite in contrast with the action
of Governor Frederick w. Plaisted
when III 1911 he recognized the Court
as above the plane of politics, by re-
appointing Justice Savage and MAX
ing Justice Whitehouse Chief Jus
tice. both of whom were of the oppo-
site party.
1t was during this excited ante
bellnm decade that the removal OF
Judge Davis took place the only in
stance during the century, and this
episode should not pass unnoficed.
1t furnishes an interesting chapter in
political history. but leaves no faint
upon the judiciary. The facts are
these, The Legislature Of 1865 had
! passed resolve submitting TO The
people Il constitutional amendment
providing for the popular election Of
Sherlffs instead OF their appointment
pY the executive. At the following
september election n majority of the
| votes was in favor of the resolve
| Governor Arson 2. morrill, and his
tCouncil canvassed tile returns deter
mined that the constitutional amend
ment had been adopted, and made a
return OF their doings TO the I.egis-
lature OF 1856. In the meantime there
| had been another political oYerttlrn
Governor Wells. who had served on
the Supreme Bench from 1S47 TO
1891, was elected by the Legisla ture
Of 1856, and he ignored the finding of
Governor Morrill, and his Council.
refused TO admit that the amendment
had become effective, removed sew
eral Republican sheriffs and filled
| their places with men of his own
party. Among others thus appointed
| was Daniel c. Emery of Portland in
place Of Seward VI. Baker removed.
This was no novelty because the Re-
publican Governor Morrill, had done
the same when h" assumed office the
year before. But The constitutional
amendment was designed to prevent
this very thing
On October TO- 1855, Governor Nor
rill had appointed Woodbury. Davis
of Belfast, then serving as State
| Treasurer. Il Justice of the Supreme
Court TO succeed Justice Joseph How
ard of Portland, whose first term had
just expired. 1t so happened that
Judge Davis was holding the Janu
AIRY term. 1856, in Portland when the
removal of Baker and the appoint
ment Of Emery took place. When
the term opened Sheriff Balfr offici
ated under his commission dated
| February Il, 1854. But OH the 9Th day
of the term. Mr. Emery appeared in
court with his commission of Jan
| uary Il, 1856, from Governor Wells
and asked to be recognized. A close
question was thereby raised, had the
| constitutional amendment adopted at
| the previous election, become effec-
tive. SO that the Governor no longer
had the power to remove a Sheriff
from office and appoint another, or did
that power still remain with the ex-
ecutive? This depended upon the true
construction of Art. y, sec. ., of our
! constitution which then, as now, pro-
| vided that after the Legislature by a
| two-thirds vote of both houses hal
! proposed an amendment to the coun-
| SelorS it should be submitted to pop
ular vote and if it shall appear that
| a majority of the inhabitants voting
| on the question are in favor of such
amendment, it shall become a part OF
| this constitution" To whom shall it
| appear? The constitution is silent on
that point. Shall it appear to the Gov
| ernor and Council or to the Legisla-
ture? Just when in point of time is
| the constitution amended? Is it when