Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1926-04-10

that the word governor" Is used In
the sense of his being the Chief Ex-
ecutive and that the word council"
was used In the sense that 1t was a
separate and advisory board, and
not that they were acting Jointly as
one tribunal. If there was any doubt
about this, of course, 1t Is clarified
in that part of the resolve submitting
the question to the people in which 1t
expressly provides that the governor
shall remove only by the consent and
advice Of the council. But If the
language in submitting the resolve to
the people was precisely like that in
the amendment, using the words.
1.-The governor and council" the inter-
probation seems to be well established
that wherever the governor and
council are to act upon appoint
ment or removal the council acts as
an advisory board.
In question submitted by the
Council of Maine, and answers of
the justices, found in " Maine, 542,
as to the relative duties of the gov
ernor and council and the relations
which they sustain to each other in
the performance of all duties where
the governor and council are to act
together their duties are clearly stat
ed and defined. This was the case
in which the governor without the
advice of the council undertook to
remove ]. w. Spaulding of Rich
mond from the Office of reporter of
decisions of the law court of Maine.
In defining the duties of the chief
| executive and the council they say:
ARTICLE 8, part first, of the consti-
t.,tt 1atn %
, and defines and limits the same"
"By Section one, The supreme
! executive power of the State shall
| be vested in a governor thus recog-
| nizing him as the head of the exec
utive department of government.
But he is not the executive depart
ment. He shall take care that the
laws be faithfully executed. He may
issue commissions, sign warrants, re-
NIT penalties. grant reprieves, COM
mutations and pardons. but he does
all this by and with the advice of
his council. He, carries into effect
the doings of the executive depart
ment of which he is the head but
he does not control it." Again 1t is
said 1.-The consent of the body would
be necessary to displace as we'll as
appoint" So emphatically does this
decision lay down the rule that the
governor cannot act without the ad
vice and consent of the council that
1t Is provided that he is even denied
that power when an officer Is to be
removed by address, without the adj.
| vice of his council first had and OBJ
tanned" After citing numerous cases
the court then say ut is thus clear
that the general power of appoint
ment or removal is no part Of the
executive functions of the governor
alone. In reference to each his ac.
ton is restricted to the advice and
consent of his council" 1t thus
seems clear that the governor car
remove only upon advice of the
council. This opinion further gives
d Iufi Interpretation of the meaning
or the words executive" "chief ex.
ecutive' and governor and council
ana mold that they all mean the
same thing. They say Thus those
administering the government at 1t.
very inception, construed executive
10 mean governor and council
linen the court proceeds to cite
many cases in which these term.
are used INTERCHANGEABLE. In the
summary the court say the word.
executive and executive department
were used to mean governor ant
councll IN a carefully worded ant
important act rendering valid all tn,
acts of the legislative and executiy,
departments Again I'm all these
cases the power was entrusted to tn,
governor and council and not Il
the governor" The Executive,
was the governor with the adyic,
and consent of his council. If now
we revert back to the words in the
llrst part of the resolve, Whenever
the governor and council upor
complaint, etc, we shall see thaI
those words mean exactly the same
as executive" executive depart
ment so that the executive depart.
nent or the governor and council
whenever they act are performin,
separate functions as a part of tn,
executive dep rtment.
NOW the vital question arises I
the governor as seems to be indi
Gated by the language of the con
stltution and Interpretation of III,
courts can remove only upon tn,
advice of the council can he. as gov
ernor. vote as a member of tn,
council to furnish that advice I,
nlmself! There is no authority 1,
me constitution that provides tina
the governor shall break a tie 4,
the council. If he votes to break ,
tle' does not he alone act upon hi
own volition without the advice O
!, any one? Does the constitution con
template that the governor shall ex
erclse, without the advice of hi
council, those duties which he car
constitutionally perform only upo1
such advice? In view of the i'm
portance of this matter, PARTICULAR,
to the successor of, Mr.. Cummings
1 deem it advisable at least to pre-
sent the question whether there Il
not sufficient doubt to require s
careful study of the question hereir
involved.