Opinion of the Justices of the Supreme Judicial Court , 50 Me. 607 ( 1863 )

State or Maine. — In Council, )

Ordered, — That the following statement of facts be submitted to the Justices of the Supreme Judicial Court, by the Governor, and that they be required to give their opinions on the questions appended thereto : —

At the annual meeting for the choice of State and county officers, held on the second Monday of September, A. D. 1860, John Hemingway of Shapleigh, in the county of York, was duly chosen to the office of county commissioner for said county of York, for the term of three years, in accordance with the provisions of the R. 9., c. 78, § 2, and having been by the Secretary of State duly notified of that fact, was, on the first Monday of January, A. D., 1861, duly qualified and entered upon the duties of said office.

Said Hemingway having served in said office one year, resigned; the Governor then, by force of said statute, c. 78, with advice of the council, appointed Alfred Hall, of said Shapleigh for one year, or to fill said vacancy, who was duly qualified and entered upon the discharge of the duties of said office,- and served in the same until the first Monday of January, 1863.

On the second Monday of September, 1862, the cities and towns in said county of York gave in their votes for a county commissioner to fill the vacancy occasioned by the said resignation of said Hemingway, which votes being duly returned to the office of Secretary of State, duly counted by the Governor and Council, Samuel Hasty of Shapleigh was declared elected to said office, and was by the Secretary of State notified of said fact, and on the first Monday of January, 1863, was qualified, and entered upon the discharge of his official duties.

First interrogatory. — For how long a time was said Samuel Hasty elected to serve as county commissioner, by force of the statutes of this State in such cases made and provided ?

On the second Monday of September, 1863, the inhabitants of the several cities and towns in said county of York, gave in their ballots for a county commissioner, to serve in said office for the term of three years from the first Monday of January, 1864; having been duly notified so to do, by an article in the warrant of each city and town in said county for calling the annual meetings on the second Monday of September in said year.

The proper municipal authorities of the several cities and towns in said county made due returns of said ballotings to the office of the Secretary of State, of the votes so cast, and said returns were duly counted by the Governor and Council, and Alfred Hall of said town of Shapleigh, in said county of York, had a majority of all the ballots so thrown for county commissioner as aforesaid.

Second interrogatory. — Is said Alfred Hall legally elected county commissioner for said county of York? .

Bangor, 23d Dec., 1863.

The undersigned, Justices of the Supreme Judicial Court, have the honor to answer the questions proposed as follows :

By statute 1842, c. 3, it was provided that bounty commissioners should be elected in the several counties, and> that those first elected should continue in office one, two and three years; the tenure of their office being so arranged that one is to retire each year. A similar arrangement is made when new counties are established. After this, a county commissioner is to be chosen annually for the term of three years.

These provisions are substantially continued by reenactment in the last revision, c. 87.

When vacancies happen otherwise than by the expiration of the full term, provision is made for filling the place made vacant, by E. S. c. 78, § 3, which is in these words: — "When no choice is effected, or a vacancy happens by death, resignation, or removal from the county, the Governor, with advice of Council, shall appoint a person who shall hold office until the first of January after another has been chosen to Jill the place.”

John Hemingway was elected for the full term of three years. He held office one year and resigned. It then became the duty of the Governor and Council to make a temporary appointment to continue "until the first day of January after another has been chosen to fill the place.” The place to be filled was the one made vacant by the resignation of Hemingway, whose original term of office had not then expired, but which will expire on the first day of January, 1864. That place has been filled by the election of Samuel Hasty for that specific purpose and no other.

The conclusions to which we have arrived, are, that Samuel Hasty was elected county commissioner to serve one year; and that Alfred Hall is elected county commissioner for the county of York.

John Appleton, C. W. Walton,

Jonas Cutting, J. G. Dickerson,

Woodbury Davis, Wm. G. Barrows,

Edward Kent.

To the Honorable the Governor and the Honorable Council of the State of Maine, Augusta, Maine.