Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1926-04-23

hearing and finding by the Govern
| or and Council. that sheriff is not
| faithfully or efficiently performing
| the duties imposed upon him by
law, the Governor has the power IF
| removal, without further action by
members of the Council.
Majority Opinion
The majority opinion signed by
Justices Wilson. Philbrook, Morrill,,
Sturgis and Bassett, is as follows:
To His Excellency Hon. Ralph O.
/ Brewster, Governor of Maine.
The undersigned, Justices of the
| Supreme Judicial Court. having
| maturely considered the questions
propounded by you under date Of
April 10th, 1926 for an advisory
| opinion by the members of this
| Court under Sec. 3 of Art VI of the
| Constitution of this state respect
| fully submit that If the questions
| propounded involved only the passing
| upon the question of whether the
| amendment of 1917 relating to the
tenure of sheriffs was adopted and
of passing upon the action already
taken by the Governor and Council
we might hesitate to reply upon the
| ground that no solemn occasion"
l
Constitution. No questions of fact
| are submitted that seem to raise
any doubt as to the adoption of the
amendment, and the passing judg-
ment upon acts already done in our
opinion would not ordinarily constiz
tute a solemn occasion. unless there
was also involved the propriety of
some immediate future action.
| Your Excellency, however. Is now
| confronted with the question of
I whether upon the acts of the Gov
| ernor and Council. outlined in the
statement prefacing the questions.
If so, what is the way marked out
for you by the amendment Of 1917.
| For this reason and also because
| important constitutional questions
are involved we are of the opinion
that a solemn occasion exists, and
| as the future action of the Governor
depends upon the effect of the ac-
/ ton already taken, we submit the
| following answers to all the Ques-
tons.
, The request for answers to the
| questions propounded contained the
| following preliminary statements:
w H E REAS the Seventy
eighth Legislature of Maine
submitted to the people a pro-
| posed amendment to Section
| 10 of Article 9 of the Constitu-
| ton relative TO the tenure of the
| Office of Sheriff, which said
| proposed amendment is printed
| as Chapter 30 of the Resolves of
1917; and proclamation by t he
Governor was made OH Septem-
Der 25th A. D. 1917 that the pro-
posed amendment had been
| adopted, which said proclama-
tioI& is printed on page 721 of
|, the Acts and Resolves of 1919.
and
WHEREAS on complaint dat
ed March 18th, A. d. 1926.
brought under the provisions of
said amendment, and after due
notice. a hearing has been held
| before the Governor and Council
of charges OF unfaithtulness and
| inetficiency preferred against
Henry f. Cummings, sheriff of
! Kennebec County; and
WHEREAS three members of
the Council have voted at
| 1irmatively to sustain said
charges-the Governor also vot
ing III the atfirmative-and three
members of the Council have
voted in the negative. and -.
WHEREAS important aues-
tons of law have arisen relative
to the Constitutional rights,
II powers, and duties both of the
| Governor and of the Council. .
and it appearing to be Solemn
occasion" within the Constitu-
tional provision,
Question One
l. Is the amendment. proposed
and proclaimed as aforesaid. now a
part of the Constitution of the State
of Maine?
This question we answer in the af-
firmative. The only ground we can
conceive for entertaining a doubt
upon this point is that under the
language of the resolve proposing
the amendment, the question to be
submitted to the people did moi
correctly state the effect of the pro-
posed amendment. if it is to be con-
strued as creating single tribuna
consisting of the Governor and
Council and the Governor upon its
finding is authorized to remove a
sheriff without further action by his
Council, and therefore, the people
did not vote to adopt such ar
amendment. This suggestion, how
ever, is entitled to no weight.
The form of the question printed
on the ballots, even though framed
by the Legislature, which Ar. Y, Sec
2 as amended does not require, is
no part of the amendment itself II
is a mere formula adopted by the
Legislature as a convenient means
of ascertaining the popular will as
to the amendment actually proposed
Not only that. but the law re-
quires all public resolves to be
printed in the state paper, and the
resolve in this case required a copy
of the resolve to be sent to the
selectmen of all the towns and
plantations; and, as is the custom
this amendment was printed in full
on the ballot used at the special
election held September 10, 1917. to-
gether with the question framed by
the Legislature.
The electorate. therefore. must be
held to have had full knowledge OF
the terms of the amendment. In
voting yes on a question so sub
mitted an elector does not vote upon
the amendment, but thereby merely
expresses his assent to the amend
ment as proposed.
The vote upon the formula adopt
ed in this instance was in the af-
firmative. and the amendment was
duly proclaimed by the Governor as
a, part of the Constitution. Acts
and Resolves 1919, p, 765.
Question Two
2. Do the Governor and Council,
under the said amendment, constl-
tute a single tribunal for the hearing
OF complaints against sheriffs; and
has the Governor the power Of vot-
ing, as a member of said tribunal. in
the determination of charges con-
tanned in said complaints?
I We answer this question also in the