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

VI lDo SO0IfCh ID CAPiCSSt IS4aA Oo
| for the appointment of the successor
| is a clear indication that by emitting
| it in relation to the act of removal,
it was intended that the act of re-
moval in such cases might be done
| by the Governor without the, further
advice of the Council. We have no
occasion to inquire why any particu-
| lar formula was selected for ascer-
| tanning the will Of the people as to
the adoption of the amendment. We
are not interpreting the resolve pass
| ed by the legislature, but the amend
ment adopted by the people. There
fore, in accordance with the plain
terms of the amendment we answer
the third question in the affirmative.
I Respectfully submitted,
(Signed) Scott Wilson
| Warren c. Philbrook
John A. Morrill,
Guy H. Sturgis
Norman l.. Bassett
Dissenting Opinion
Associate Justices Luere B. Deas,
| of Bar Harbor and Charles z. Barne.i
of Houlton rendered a dissenting
| opinion. The opinion in full is as fol-
| lows:
| To His EXcellency, Governor Brew
| ster:
Answering questions of April 10th,
| the first must be answered aftirma-
! lively. The second relates to things
| already done But the third question
relates to contemplated future act.
! and in order to answer this it is nec-
essary to consider the second.
In 1917 the legislature by a resolve
| proposed an amendment to the Consti-
| tuition. The amendment authorized
| "the governor and council to inquire
! into the faithfulness and efficiency of
a sheriff. If the sheriff be found I'M
| faithful or inefficient, the governor
may remove" him from office.
The meaning of. the term governor
and council" as used in the resolve Is
| doubtful The fact that it is found
necessary to apply to the Justices of
! the Supreme Court for a construction
of these words show that they are
| ambiguous.
One theory is that the amendment
| creates a new and anomalous tribunal
| in which the governor does not gov
| ern, nor the councillors give counsel,
but in which each councillor has one
| vote and the governor one.
| The other theory is that the gov
ernor and the council each acts as
s,.ch as is true in the exercise of
| every other power and the perform
ance of every other duty.
To determine the meaning of these
/ words we must seek for the intent of
! the legislature in proposing the
| amendment and the people in enact
| ing it, 1.-THE purpose Of construction
/ of constitutional amendment is to
! give effect to the intent of the franz
! ers and of the people who have adopt
! ed it. State VS.. Zimmerman, 1877
. Wis, 1870
| If we look to the phrase quoted on
| ~. there is presumption that the
word council means the council as
! such as not part of another tribunal
| which has no name and for which
| there is no precedent
| The duty of the council is to lad
| wise the governor in the executive
part of the government" Constitution,
Art. V, Sec. /.
"The removal of unit or incompe-
| tent men belongs to the executive part
| of the government" ~ Me, 54S.
| To determine the meaning Of a
| legisla tive act or resolve we may II
necessary look beyond its four cor
| ners. But in this case it is not neces-
sary. In that part of the resolve pro-
vidlng for submission to the people
| the legislative intent is made mani
| fest. The resolve prescribes the ques-
| ton which was to be and was in fact
| submitted to the people as follows:
Shall the constitution be amended
as proposed by a resolution of the
legislature granting to the governor
| by the consent and advice of the coun-
| Gil the power to remove sheriffs?"
| The intent of the legislature We
think apparent. 1t is that the council
| is to act as council and not as part of
| a. convention. 1t is that the council
shall advise the governor in the ex-
| ecutive part of government. "Consti-
| tuition, Art V. Sec. !, the removal or
officers is an executive act. az, Me-,
54S.
The Governor. not being a member
of the council. is not authorized to
vote as a part of it.
Until the council or majority of
| it have acted affirmatively upon the
proposition we think that the gov
ernor has no power of removal But
| the intent of the people who adopted
| the amendment must also be ascer-
| tanned There is no doubt as to their
| meaning. They voted upon proposed
amendment couched in ambiguous Ian
guage, but explained and construed
DIV CnS Leg lSldluic ltSCiA. IhSy oiNNs
| ed to the governor the power of re-
moval only "by the consent and adj
vice of the council" which consent
and advice is in the present case
! lacking.
It is said that the proposed amend
ment was set forth in full in the bal
! lot, and that by reading it the voter
! should have perceived that the Ques-
| ton submitted nis-Stated its meaning.
! We think it unlikely, however, that
| the voter by reading the proposed
| amendment would have discovered in
| it a meaning which the Legislature ap-
parently did not think of. and con-
corning which the governor is in
! doubt and the Supreme Court divided.
| To fill a vacancy ad interim the
! Constitution requires action by the
| governor and the concurrence OF a
ma jority of the council. We think that
nothing less is contemplated in the
| removal of an officer elected by the
| people. True, the removal is the gov
errors act. The consent and advice OF
! the council is not required, because
! the removal is not to be made until
ma jority of the council have found
Z, the officer unfaithful and inefficient
and then only if the governor as gov
ernor, and not voting merely as a
| member of joint caucus, finds the
| charges sustained.
| In previous hearings, governors
| have voted with the council In nc
| case, however. has there been tie
| The question therefore has never been
important and has apparently not beer
| passed upon or controverted. 1t was
| natural and not unreasonable that
these presidents be followed.
] But our study of the subject con
| yiilces us that in removal cases the
/ anunciI euch and that the