98 A. 804 (Me. 1916), State ex rel. Deering v. Harmon

Citation:98 A. 804, 115 Me. 268
Opinion Judge:KING, J.
Party Name:STATE ex rel. DEERING v. HARMON.
Attorney:Eben Winthrop Freeman, of Portland, and Cleaves, Waterhouse & Emery, of Biddeford, for plaintiff. William R. Pattangall, Atty. Gen., and James O. Bradbury, of Saco, for defendant.
Judge Panel:Argued before SAVAGE, C. J., and KING, BIRD, HALEY, and HANSON, JJ.
Case Date:October 03, 1916
Court:Supreme Judicial Court of Maine

Page 804

98 A. 804 (Me. 1916)

115 Me. 268

STATE ex rel. DEERING

v.

HARMON.

Supreme Judicial Court of Maine.

October 3, 1916

Argued before SAVAGE, C. J., and KING, BIRD, HALEY, and HANSON, JJ.

Eben Winthrop Freeman, of Portland, and Cleaves, Waterhouse & Emery, of Biddeford, for plaintiff. William R. Pattangall, Atty. Gen., and James O. Bradbury, of Saco, for defendant.

KING, J.

This is a proceeding by the Attorney General, on the relation of John P. Deering, upon information in the nature of quo warranto against the respondent, C. Wallace Harmon, to test his right and title to the office of judge of the municipal court of Saco.

The substance of the information, filed

Page 805

January 14, 1913, is, that the relator was duly appointed, February 2, 1909, by the Governor and Council, judge of said court, and was commissioned as such for a term of four years; that on November 28, 1912, the Governor and Council determined that the office of judge of said court was vacant by reason of the abandonment of the office by the relator, and by reason of his failure to reside in the city of Saco as required by the charter of said court; that on December 19, 1912, the Governor and Council appointed the respondent to be judge of said court and he was commissioned for the term of four years; and that since December 20, 1912, he has used and enjoyed and continues to use and enjoy all the rights, privileges, and benefits belonging to that office. It is unnecessary we think to state here, either in detail or in substance, the allegations of the answer of the respondent or of the replication in behalf of the relator, since it is conceded by both sides that the controlling question presented is whether there was a vacancy in said office at the time of the respondent's appointment thereto.

The term of office of the relator expired by limitation on February 1, 1913, soon after these proceedings were begun, and before any hearing was held thereunder. But that fact is immaterial. The proceedings are prosecuted in behalf of the state by the Attorney General to determine by what warrant or authority the respondent is holding the public office in question. That is a question of present public interest, for if the respondent is wrongfully holding the office there should be a judgment of ouster against him notwithstanding the relator is not now entitled to the office. Commonwealth v. Swasey, 133 Mass. 538.

Under the Constitution the Governor, with the advice and consent of the Council, has authority to fill by appointment a judicial office when a vacancy in such office exists. And it is not contended, as we understand, that the respondent's appointment as judge of said court on December 19, 1912, was invalid on any other ground than that there was no vacancy in the office at that time.

The tenure of office of judges of municipal and police courts is fixed by the Constitution to be "for the term of four years." And it may be stated at the outset, that the determination by the Governor and Council on November 28, 1912, that the office of judge of the municipal court of Saco had become vacant by reason of the abandonment of it by the relator, and by reason of his failure to reside in Saco, did not create a vacancy in that office. That office could have become vacant only by the removal of the relator by impeachment for misdemeanor in office, or by his removal "by the Governor, with the advice of the Council, on the address of both branches of the Legislature" (Const. of Maine, art. 9, § 5), or by his death, or resignation, or by his abandonment of the office. The Governor has no authority, either alone or with the advice of the Council, to remove a judicial officer whose term of office is fixed, except "on the address of both branches of the Legislature." And indeed it is not claimed in this case that the Governor and Council did remove the relator as judge of said court, thereby creating the vacancy in that office which they filled by the respondent's appointment. If, as a matter of fact, the office was then vacant the Governor and Council were authorized and required in furtherance of the public interest to fill it. What they did, therefore, on November 28, 1912, was to...

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