Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1921-07-23
THE DAVIES NOMINATION

has nominated MIR. Davies as a menu
her OF the Public Utilities Commits
sion, after three rcfusals by unani-
nous Executive Council to confirm.
So far as the writer knows no par
allel instance of executive insistence
has arisen in the entire history Of
our State.
To thoughtful citizens the question
has definitely ceased to relate to the
now the larger and vastly more I'M
portant issue of good government.
Let's try and reason the mat-r
out, calmly and fairly, And lets get
back to fundamental principles
Is the Governor, in the eye of the
law, the superior of the Executive
Council in this matter? Is his legal
right to nominate greater than the
Councils legal right to refuse con-
firmation? TO both questions We
answer no. And clear recognition
of the correctness of that answer
may dispel some of the fog which
has obscured the real issue.
The power and duties Of both
Governor and Council IN this matter
are clearly defined in the Constitu-
ton of Maine. Let US not forget
that that Constitution is the funda-
mental law Of the State, binding up
on both the Governor and Council.
who have sworn to support it, bind
ing upon our courts, who can inter-
pref but cannot change it, binding
upon our legislature. whose passage
of a law in conflict with its provi-
sions would be a mere nullity, and
binding upon every citizen of Maine
until by vote of the people them
selves it shall have been changed.
This fundamental law (Article V,
part /, Section 81 provides that the
Governor
shall nominate, and. with the ad-
vice and consent of the council, APP
point all judicial officers, coronerS,
and notaries public; and he shall also
nominate. and with the advice and
consent Of the council, appoint all
other civil and military officers, whose
appointment is not by this Constitu-
ton, or shall not by law be otherwise
provided for
In 1881 the justices Of the Maine
Supreme Court rendered an advisory
opinion (72 Me. 542) involving an
Interpretation of the above provision,
though the exact question at issue
was as to the Governors power to
remove an officer without the con-
sent of the Council, when the orig
inal appointment required their ad-
vice and consent. In denying that
power to the Governor, the court
said:
by Section /, The supreme execu-
tive power of the state shall be vest
ed in governor thus recognizing
him as the head of the executive de-
partment of government. But he is
not the executive department
He carries into effect the d'Jings of the
executive department of which he is
the head but he does not control it.
If he was clothed with supreme and
uncontrolled executive power, the
council would have no duties. His
powers are only what are specially
given him by the constitution Or
necessarily inferable from powers
clearly granted.
The court further said
"In this state the council is a part
of the executive, and specially created
to advise the governor in the execu-
tive part of government
Except in the special instance in
which the power of appointment is
conferred on the governor, he cannot
appoint without the concurrence Of
the general power of appointment or
removal IL no part Of the executive
functions Of the governor alone. In
reference to each his action is re-
his council"
The provision under which Judge
Cleaves' successor upon the Public
Utilities Commission will be appoint
ed is contained in Section ! of Chap
ter 55 of the Revised Statutes, as
follows:
The Public Utilities Commission as
heretofore established, shall consist
of three members appointed by the
governor, with the advice and consent
o. the council, from time to time upon
the expiration of the terms of the
several members. for terms of seven
years; any vacancy occurring in said
commission shall be filled by appoint
ment for the uneXpired portion of the
term IN which such vacancy occurs"
The power and duty of making the
nomination, therefore. devolve upon
the Governor alone, but when once
made. the seven Executive Council
lors are on an equal footing with the
Governor in the matter of confirma-
ton. Their power and responsibility
in the matter is the same, and as
great, as his. The concurrence of a
majority of eight men is necessary.
and each is the constitutional peer of
the other seven.
Let us consider the situation in
the light of the foregoing facts. Three
times has the Governor nominated
Mr.. Davies. Three times, by a unan-
imous vote, the Council has refused
confirmation. Upon what theory is
this fourth nomination made?
Is it on the theory that the will of