Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1926-07-16

visions Of the constitution the court
was required to expound and con-
strue the provisions of the consti-
tuition and statutes involved. 1t gave
full answers to those questions. The
opinion Of the court was, thus OBJ
tanned in one of the modes provided
in the constitution for an authoria-
tive determination of important
questions of law" The law thus de-
termined Is the conclusive guide OF
the governor and council in the per-
formahce of their ministerial duties.
Any action on their part In deter
mining the vote as 1t appears by the
returns in violation of the provisions
of the constitution and law thus de-
clared is an unsurpation of authority,
and must be held void"
Attorney Perkins continues
1T should be noticed that our
court said that the law thus deter
mined is the conclusive guide of the
governor and council in the per-
Torrance of their ministerial duties.
while 1t may indeed be true that
an advisory opinion ordinarily does
not have the force and effect of
decision of the Court, the circum-
stances under which an advisory
opinion may be given by the Court
it of vital Importance. In the pres
ent case, as stated by the Court it
self in its advisory opinion at the
time of submitting the questions to
the Court upon which the advisory
opinion was given, the Governor and
Council Of this State had, by vote
of four to three, found Henry r.
Cummings guilty of neglect of duty
as Sheriff Of Kennebec County, and
for the express purpose OF deter
mining what course of action he, the
Governor. might take in the future
in the removal of Henry Cummings
he submitted certain questions to the
Supreme Judicial Court of our State
for advisory opinion. and for the eX-
press purpose of guidance Of the
Governor in his future action a ma
jority of the members of our Court
advised the Governor that the action
of the Governor and Council sitting
as special tribunal as triers of
facts was in accordance with Article
TX of section ten of the Constitu-
ton Of Maine. and that there mere
ly remained, if he saw fit so to do,
the removal of Henry Cummings as
Sheriff of Kennebec County.
THE opinion of the Court under
these circumstances does not per-
haps have the effect Of a decision Of
our Court. 1t has more than the ef-
feet of a decision of our Court be-
cause If the Governor Of our State
submits questions to the Supreme
Court OF our State to guide him n
enforcing laws of our State and for
the purpose of performing those
duties with which he Is charged
himself under the Constitution, and
the Court replies, giving him such
instructions and he follows the in
structions of guidance of the Court
thus given, under these circum-
stances an advisory opinion of our
Court so given should be more bind
ing upon the Court than an ordinary
decree Of the Court.
"The Government Of our State is
divided into three branches: The
Executive, the Legislative and the
Judiciary; each branch of the gov
eminent being coordinate and equal
in their several spheres. and the
Constitution Of our State provides
that when a solemn occasion has
arisen the Executive may submit
questions to the Supreme Court of
our State for advisory opinion. Such
a situation having arisen the Gov
ernor, under the Constitution. sub
mitted questions and received an
answer thereto, and to now hold that
the acts done by the Governor in
pursuance of the advisory opinion of
ma jority of our Court under these
circumstances We're null and void
and not in accordance with the Con-
stitution of our State would be sub
versive of orderly government. and
| am unable to conceive, under the
circumstances az exist in this case,
how this Court can do otherwise than
to hold that the removal of Henry +.
Cummings as sheriff of kennebec
county was by due process of law and
in accordance with the Constitution
of our State, and that John NJ. East
man is now the duly appointed and
qualified sheriff of Kennebec coun-
ty."
The case was taken under advisa-
ment by Justice Dunn who later de-
clared that it would probably take
several DAYS to reach his decision as
there were several delicate points
upon which he must decide.
1t is generally conceded that re.
CARELESS of the decision Of Justice
Dunn the case will be carried by one
party or the other to the law court
| for final judgment and that this will
require several months before tie
| case can finally be settled.