In re Opinion of the Justices

• Decision Date: 26 February 1941
• Parties: In re OPINION OF THE JUSTICES.
• Court: Maine Supreme Court

19 A.2d 53

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Maine.

Feb. 26, 1941.

In the matter of the opinion of the Justices of the Supreme Judicial Court on questions submitted by the State Senate as to the constitutionality of a proposed act providing for appointment of the state treasurer by the commissioner of finance with the approval of the Governor and council.

Questions answered.

Section 4 of Legislative Document 49, containing the legislature's resolve proposing constitutional amendments repealing constitutional provisions respecting the office of state treasurer, provides as follows:

State of Maine.

In Senate

February 14, 1941

To the Honorable Justices of the Supreme Judicial Court:

Whereas, it appears to the Senate of the 90th Legislature that the following are important questions of law and the occasion a solemn one, and

Whereas, a Resolve has been introduced into the Senate entitled "Resolve Proposing Amendments to the Constitution Repealing the Constitutional Provisions Relating to the Office of Treasurer of State and Ratifying and Approving a Legislative Enabling Act Providing for Appointment of the Treasurer upon Approval of this Resolve" (a copy of which resolve marked Legislative Document 49 is herewith enclosed and made a part hereof) proposing an amendment to the Constitution of Maine to remove therefrom all provisions relative to the election, tenure and qualifications of the treasurer of state, and

Whereas, the amendment so proposed will be submitted to the people, if said resolve is finally passed, on the 2nd Monday in September next and, if accepted by them, will then become a part of the Constitution, and Whereas, in anticipation of the adoption of said Amendment a bill has been introduced into the Senate entitled "An Act Creating a Bureau of the Treasury and Assigning Certain Duties Thereto" (a copy of which act marked Legislative Document 46 is herewith enclosed and made a part hereof) under the terms of which the treasurer of state is appointed by the commissioner of finance with the approval of the governor and council, and which act according to its terms is to become effective upon approval by the people of the aforesaid Resolve, and

Whereas, it is important that the Legislature be informed as to the constitutionality of the proposed act, now therefore, be it.

Ordered: That the Justices of the Supreme Judicial Court are hereby requested to give to the Senate, according to the provisions of the Constitution on this behalf, their opinion on the following questions, to wit:

Question 1

Where the Constitution provides for the tenure of office, qualifications, and mode of election of a state officer but contains no express prohibition of legislation with regard to such tenure, qualifications or election, would it be a constitutional exercise of the legislative power to pass, concurrently with a resolve proposing an amendment to the constitution removing therefrom the provisions relative to the election, tenure of office and qualifications of such officer, an act providing a different mode of election and a different tenure of office, which act is not to become effective until and unless such resolve is adopted by the people?

Question 2

If the provisions for ratification of Legislative Document 46 were omitted from Legislative Document 49 and the act and resolve finally passed by the legislature and the resolve adopted by the people, would Legislative Document 46 then become effective according to its terms as a valid and constitutional exercise of the legislative power?

Question 3

If the legislature has not the power to pass the act set forth in Question 1 and the act is unconstitutional, can such unconstitutionality be cured by including in the resolve amending the Constitution as set forth in Question 1 an express provision ratifying and approving such act?

Question 4

If Legislative Document 49 as now written were to be finally passed by the legislature and adopted by the people, would the provisions of Section 4 thereof cure any want of power in the legislature to pass Legislative Document 46 and make that act then effective as a valid law?

February 14, 1941

In Senate Chamber

Read and Passed.

Royden V. Brown

Secretary

A true copy of Senate Order

Attest:

Royden V. Brown

Secretary.

To the Honorable Senate of the State of Maine:

The undersigned Justices of the Supreme Judicial Court, having considered the questions upon which their advisory opinions were requested by Senate Order of February 14, 1941, and understanding from the preamble and Legislative Documents submitted that the questions have reference of the office of Treasurer of State, respectfully submit the following answers.

Question 1.

Where the Constitution provides for the tenure of office, qualifications, and mode of election of a state officer but contains no express prohibition of legislation with regard to such tenure, qualifications or election, would it be a constitutional exercise of the legislative power to pass, concurrently with a resolve proposing an amendment to the constitution removing therefrom the provisions relative to the election, tenure of office and qualifications of such officer, an act providing a different mode of election and a different tenure of office, which act is not to become effective until and unless such resolve is adopted by the people?

Answer 1.

Article XXVII of the Amendments to the Constitution of Maine provides:

"The treasurer shall be chosen biennially, at the first session of the legislature, by joint ballot of the Senators and Representatives in convention, but shall not be eligible more than six years successively."

It is, of course, well settled that legislative power is measured by limitation, not by grant, and is absolute and all-embracing except as expressly or by necessary implication restricted by the Constitution. Sawyer v. Gilmore, 109 Me. 169, 180, 83 A. 673; Opinion of Justices, 132 Me. 519, 174 A. 845; Cooley's Constitutional Limitations, 8th Ed, Vol. 1, Page 348. A prohibition by necessary implication is as effective as an express prohibition.

We are of opinion that Article XXVII of the Amendments to the Constitution of Maine, clear and unambiguous in language, is mandatory and, by necessary implication, not only absolutely prohibits filling the office of State Treasurer by any method of selection not there prescribed, but is also a complete inhibition against the enactment of legislation to that end, even conditionally. Opinion of Justices, supra. This question is answered in the negative.

Question 2.

If the provisions for ratification of Legislative Document 46 were omitted from Legislative Document 49 and the act and resolve finally passed by the legislature and the resolve adopted by the people, would Legislative Document 46 then become effective according to its terms as a valid and constitutional exercise of the legislative power? Answer 2.

We answer this question in the negative.

Question 3.

If the legislature has not the power to pass the act set forth in Question 1 and the act is unconstitutional, can such unconstitutionality be cured by including in the resolve amending the Constitution as set forth in Question 1 an express provision ratifying and...