Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1926-04-14
Defends Propriety
Continued from Page One)

oHeIlu cummings or his rights, nor
through any concern for the action of
the Governor and Council, but simply
to acquaint the public and the new
sherin, should any be appointed, with
the question which might be raised
with regard to his authority to en-
force the law.
Judge Spear said:
do not care to enter into a news
paper controversy with the Gov
ernor or anyone else, and had he not,
by innuendo, challenged the propriety
OF my right in suggesting that the
action of the Governor and Council,
under the Constitutional Amend
ment of 1917. might be subject. to
some question, / should have been
content to merely have called public
attention to the matter. While /
want 1t distinctly understood that /
DO not take any directions from the
Governor as to the propriety Of my
action, / nevertheless desire to an
nounce my respect for the Office Of
chief magistrate of my state, and, in
accord with that respect, before I
wrote a word of my article to the
kennebec Journal last Friday, |
Department and informed the
Deputy Attorney General. Mr.. Eel
lows being absent, of the appre-
tensions that lay in my mind re-
garding the legality of the right of
the Governor to vote with the
Council, in order to furnish a ma
Jority in favor Of removal. Mr.. Fogg
communicated my message to the
Governor, and, upon return to his
office, called me over the phone and
| asked me upon what theory of error
| had based my fears; and I advised
him substantially as stated in my
| article of last Friday. AS no further
information was requested and no
suggestion Of what notice, if any.
would be taken of my communica-
ton, deemed it public duty to call
public attention to the legal aspect
OF the case. In thus calling attention
to the matter l had no thought or
concern whatever with the facts or
findings of the Governor and Council
Nor was I influenced with respect to
the legal rights of Sheriff Cum
mings as he had ample counsel to
look after his affairs. While 1 had
thought of the legality of the action
OF the Governor and Council, and
| had spoken of it, / had no notion of
| calling public attention to it, but
when the question suddenly dawned
/ NFOAA AAAO VI etIC laLdId SITUATION
the new sheriff and his deputies
would occupy, and the perilous con-
dition in which the public, If there
was no legal basis for the appoint
ment of a new sheriff. would find
itself, i'll both civil and criminal re-
spectS, l thought the appointing
power would like to have its atten-
ton called to the doubt that had
arisen in my mind and then proceed
with or without reference to what |
have suggested. Instead of Offend
ing | thought I, was doing 4 service
to the executive and legal depart
ments of state. In view of the fact
that the Governor, and his advisers,
nave regarded it necessary to call
for the opinion Of the court. it seems
that my warning was both appro-
pirate aud timely. | desire to re-
peat. moreover that my only object
was to see this important question
settled and made certain, which the
simple process of interrogating the
court would, in a very short time,
effcctuate. In view of what has oc-
CURED it may not be improper for
me at this time to more fully state
the reasons for the doubt which led
ME to question the legality of the ac-
ton of the Governor and Council in
their vote to remove Sheriff Cum
mings.
In the first place. my conception of
the trial of the sheriff was that it
was in the nature of legal pro-
ceeding in which the Governor was
sitting as a judge and the Council
as his advisers, in accordance with
che provision of Article V. Sec. | of
the Constitution, which reads as fol-
lows: There shall be council. to
consist of seven persons, citizens of
the United States, and citizens of
this state, to advise the Governor in
the executive part of the govern
ment" This article and section have
never been directly amended. In it
the duties of the Council are solely
and absolutely limited to advice OIL
the Governor. 1t needs no argument
to prove that the advice contem-
plated by this section must be by the
Council, alone, and by majority
vote. This is the fundamental law
as it stands today with reference to
the action of the Council in any
matter that comes up. in which the
Council is required to act. But,
amendments to constitutions and
statutes may be made by necessary
implication. Was the above section.
creating the Council and defining it's
duties, intended by the legislature
to be amended, or was 1t amended
by Necessary implication by the pas
sage of the Resolve in Chapter 30 of
the Law of 1917?
1t is unnecessary to refer to au-
thorities to show that statute,
much more a constitutional pro-
vision, can be repealed or amended
by implication only when the
language and construction of the
later law is so inconsistent with the
former law that the two cannot
stand together. One or the other
must go. In such case the later pre-
walls. For the sake of brevity I re-
fer to the Resolve of 1917 as COM
posed of two parts. the first part re-
lating to the statement of the
amendment and the second part to
the submission of the amendment to
the people. The first part provides
that the Governor and Council upon
complaint" may make certain And
1ngs touching the efficiency and
fidelity of the sheriff. Is this to be
construed as amending Sec. l.,
Article V? Neither the language,
nor the construction Of the language,
require any such interpretations.
In the Spaulding case the reporter
Of decisions. by the language Of the
statute was to hold the Office during
the pleasure Of the executive" This
might well be construed to mean the
Governor. Yet the court held that Eek
ecutive" meant Governor and Council"
and that the phrase Governor and
Council" meant the Council acting in
an advisory capacity. Hence, when the
Legislature in the Resolve used the
phrase Governor and Council" they
are presumed to have used it with
reference to the Interpretation which
had been judicially given. This Is
well settled rule of construction. Aft
er quoting numerous cases to show