Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1926-04-30
LETTER OF ADVICE
Continued from PAGE one)

LETTER OF ADVICE
Continued from Page one)
Augusta, Counsel for Sheriff Cum
lnines 10 the sheriff, as as follows:
Henry F. Cummings. Esq,
Sherin OF Kennebec County,
Augusta, Maine.
answering your query relating to
any steps contemplated by us with
view OF securing the retention by
you OF your office as sheriff. and as
well, any advice we have to give you
governing your conduct when and if
Mr.. Eastman your alleged successor
presents himself with his credentials,
we now beg to advise that the
amendment to the State Constitution
oy virtue of which removal proceed
ing In your case was instituted, I'M
DER the construction given it by the
state officials and by the individual
Justices Of our Supreme Judicial
Court, Is in our opi:iion in conflict
with the provisions Of the Constitu-
ton of the Unite1 States.
We have examined the authorities
OF law bearing upon the subject and
Tor time considered proceeding in
the Federal Courts. We are COM
PEELED to abandon this plan because
the time within which the decision
could be had, is too far distant to
De or avail to you. Under such a
proceeding 1t is necessary to assem-
pie three Federal Judges, one of
whom must be from the Circuit or
Supreme bench, and as the latter is
not available and the Judges Of the
former court engaged in a term at
Boston. we feel that the necessary
delay caused alone by this provision
OF law, for the time, renders a Fed
eral proceeding valueless.
Having then no remedy at hand,
except as provided by our State laws.
brings us Immediately to a consid-
Grafton Of your status when con-
fronted by your alleged successor, as
well as your conduct thereafter.
You have open to you, from which
to choose, two courses, viz
First: You may surrender your Of
flee and authority, under protest, and
at your pleasure institute quo war
ranto proceedings in the State courts.
to test the validity and legality of
Mr.. Eastmans appointment.
Secondly: You may refuse to sur
render and refuse to recognize the
'NSoiASy anu N1liuily VI yOuT dll6SSu
successors appointment, until the
matter has been established in our
courts. after a full hearing on the
merits. Our first proposition If fol-
lowed will plunge the administration
of law so far as enforcement is con-
cerned, into chaos. With litigation
pending 1t is presumed that the
County Commissioners will refuse to
Fay Mr.. Eastman, hence, he will find
difficulty in procuring a competent
and industrious corp of deputies,
with resultant lack of endeavor in
securing punishment for law violat-
ors. In such an emergency it is your
duty and the duty of your deputies
having had compensation to this
time. to continue to serve, that life
and property may be secure.
The right of your alleged successor
and the legality. of his appointment
has been questioned by men whose
, legal opinions have heretofore been
accepted as final. 1t is true of course,
that the question of the right of a
Governor to vote as part of the
Council has been approved by no
less distinguished gentlemen, but this
approval has not the force of law. 1t
is but an advisory opinion, based
upon an ex parte proceeding, and
not binding even upon those who
rendered it.
We view the question at this time
as moot question widely discussed,
but lacking finality. because a deci-
sion on the case in question has not
been made, after due hearing in a
court Of law.
If the question was one of law
alone we would hesitate to follow the
course herein decided upon.
We participated in the enactment
of the amendment as voters, and
we know that in the determination
of our decision pro or con we were
dependent upon the question framed
by the Legislature and submitted to
us in our ballot-hence we say that
as participants in the enactment of
this law, it was not our intentions
to grant any Governor the author
ity to act as complainant, judge and
jury.
We find no man who participated
in the enactment of the amendment
who subscribes to a different inter-
probation.
Under such circumstances you
cannot surrender the administration
of the duties Of the sheriff's office
to any man unless he is duly quail
fed.
You are under bond to serve civil
process and to perform your other
duties and are liable in damages
for any neglect of duty. If you
should by acquiesence, consent that
another perform the duties incum-
bent upon you, it is possible that
harm may come to you through
delegation of your authority, and
most certainly, If you refuse to per-
form an act, which the law requires
you to perform, you will be liable
in damages.
If you elect to surrender your Of
flee on demand of your alleged sue
cessor and mean to test the legality
of his appointment, and the pro-
ceedings upon which it is founded,
it will then be necessary for you to
institute quo warranto proceedings.
This action is one which issues,
as of course, at the request of the
Attorney General, and is available
to others only by his consent. I'M
STATE OF MAINE