Fellows v. Eastman

• Citation: 136 A. 810
• Parties: FELLOWS, Atty. Gen., ex rel. CUMMINGS v. EASTMAN.
• Decision Date: 31 March 1927
• Court: Maine Supreme Court

136 A. 810

FELLOWS, Atty. Gen., ex rel. CUMMINGS

v. EASTMAN.

Supreme Judicial Court of Maine.

March 31, 1927.

Appeal from Supreme Judicial Court, Kennebec County, at Law.

Proceeding in the nature of quo warranto by Raymond Fellows, Attorney General, on the relation of Henry F. Cummings, against John M. Eastman, respondent. From judgment for respondent, the relator appeals. Appeal dismissed and judgment affirmed.

Argued before WILSON, C. J., and PHILBROOK, DEASY, STURGIS, BARNES, BASSETT, and PATTANGALL, JJ.

Joseph E. F. Connolly, of Portland, and Ralph W. Farris, of Augusta, for appellant.

Locke, Perkins & Williamson, of Augusta, for appellee.

WILSON, C. J. A proceeding by information in the nature of quo warranto to determine the title to the office of sheriff of Kennebec county for a term expiring January 1, 1927.

The relator was at the September election in 1924 elected sheriff of Kennebec county, and duly qualified and took up the duties of his office on January 1, 1925, for a term of two years.

On March 12, 1926, Arthur H. Field, chief of the state highway police, complained to the Governor and Council that the relator had not faithfully and efficiently and was not then faithfully and efficiently performing his duties as such sheriff. The proceedings were brought under an amendment (see Laws 1919, p. 765) to section 10 of article 9 of the Constitution, and adopted at the September election, 1917, which provides a method for the removal of sheriffs when found to be unfaithful or inefficient in the performance of their duties.

A hearing was held by the Governor and Council, and by a vote of four to three, the Governor voting—the Council by reason of an unfilled vacancy caused by death then consisting of six members—the relator was found guilty of the charges against him. Question having arisen as to the legality of the procedure and the adoption of the amendment, before proceeding to remove the relator, the Governor, under section 3 of article 6 of the Constitution, requested the opinion of the justices of the Supreme Court as to whether the amendment under which the proceedings were instituted was legally adopted and whether by the terms of the amendment a majority vote of the Council was required before the Governor could remove a sheriff.

The members of this court, 125 Me. 530,¹ unanimously advised the Governor that the amendment had been legally adopted and proclaimed, and had become a part of the organic law of the state; and a majority advised that the Governor and Council under the amendment were constituted a special tribunal to hear and determine the facts in such proceedings, and as such tribunal their duties were judicial rather than executive and advisory; that the Governor was a member of such tribunal and entitled to vote; and that a majority vote of the tribunal so constituted was sufficient to furnish grounds for the Governor without further action by the Council to remove the offending officer. Whereupon the Governor removed the relator and named the respondent as sheriff of Kennebec county for the remainder of the term, which appointment was duly confirmed by the Council, and the respondent duly qualified himself for the performance of the duties of the office.

On June 16, 1926, the relator instituted these proceedings. After a hearing before a single Justice in July following, the right of the respondent to the office of sheriff of Kennebec county until January 1, 1927, was found valid and confirmed. Thereupon the relator appealed to this court sitting in December, 1926, alleging 20 different grounds of appeal.

His council, however, in his brief states that only two questions are involved: (1) Whether the amendment was legally adopted, and (2) whether, if adopted, the Governor can vote with and "as a councilor."

We think there is no merit in his first contention, whatever the interpretation put upon the amendment. While the question formulated by the Legislature for submitting the amendment to the people may not have aptly expressed the full import of the amendment as construed by a majority of the court, the evidence does not disclose that any deceit was intended or practiced. The entire amendment was printed in full on the ballot for the information of the voter. That all are not now agreed as to its construction does not militate against its adoption.

The submission of constitutional amendments by printing on the ballot a brief statement of its general import in the form of a question on which the voter indicates his wishes by voting "yes" or "no" is the common and convenient method in all the states. Different methods of bringing to the attention of the voter the actual provisions of the amendment referred to in the question submitted are followed. In this instance, if it had not already, according to the usual practice, been printed in the public press, the full context was printed on the ballot.

The electorate by voting "yes" or "no" upon the question submitted either adopts or rejects the amendment. By an affirmative vote, it does not adopt the question as a part of the amendment. While the question to be submitted to the voters is contained in the resolution passed by the Legislature, it is no part of the amendment, but a mere formula prescribed, not to inform the voter of the full import of the proposed amendment, but to enable the electorate to express its will as to whether the proposed amendment should become a part of the organic law. Cooney v. Foote, 142 Ga. 647, 654, 83 S. E. 537, Ann. Cas. 1916B, 1001; Cudihee v. Phelps, 76 Wash. 314, 136 P. 367. The procedure outlined by the Constitution in submitting this amendment to the people was followed. The vote was in its favor. It was duly proclaimed a part of the Constitution. To what extent the formula submitted to the voters should control its interpretation is another matter. Of the adoption of the amendment there can be no doubt.

As to its construction, no extended discussion is now necessary, as we think the appeal should in any event be dismissed upon other grounds.

In removing the relator, the Governor proceeded in accordance with the judicial interpretation of the amendment obtained by him under the Constitution. While the legality of relator's removal from the office may not be thereby rendered res adjudicata, nor does the rule of stare decisis apply to the constitutional advisory opinions of the Justices where property rights are concerned, but where property rights are not involved, a public office being a public trust and not a vested property right, Taylor v. Beckham, 178 U. S. 548, 577, 20 S. Ct. 1009, 44 L. Ed. 1187; Rounds v. Smart, 71 Me. 383; Prince v. Skillin, 71 Me. 361, 36 Am. Rep. 325; Andrews v. King, 77 Me. 231; Nichols v. MacLean, 101 N. Y. 526, 5 N. E. 347, 54 Am. Rep. 730...