I concur in the result only. On grounds not discussed in the opinion, I conclude that the county commissioners were justified, in ordering the register de facto, who performed the duties of the office, to be paid by the county treasurer. Whatever rights or remedies the plaintiff may have against other parties, I do not think this action can be maintained.
But I cannot agree with my associates in the reasons which they have given as the basis of this conclusion. And’, as important questions are involved, which may be raised again whenever new amendments to the constitution are proposed, I have concluded to state the reasons for my dissent.
There are two or three familiar principles, unquestioned, of which I think we need to be reminded.
All proper governmental power is inherent in the people, *410Constitution, art. 1, s. 2. All officers, however elected or appointed, in administering the government, are the agents of the people. For the purpose of a government, the people have adopted a written constitution. This constitution may be amended from time to time, like any other statute law; but at any given time it consists of certain definite words and séntences. If it is amended, it is done by striking out certain words and sentences contained in it, or in adding words and sentences to it. And there is some definite point of time when the change is made.
When the constitution of this state was formed, the office of governor was established; and also the office of register of probate. The office is entirely distinct from the person filing it, though the same words describe each. The office exists, whether filled or vacant. And the mode of filling it is also an entirely distinct matter from the office, as established. Any change in the manner of filling an office, does not affect its existenee, or the duties appertaining to it.
The people coneluded to fill the office of governor themselves, by election, instead of delegating authority to any man, or to any body of men, to do it for them. But they did not, at first, think best to fill the office of register of probate .in this way. They gave the governor and council a power of attorney to do it for them. Const., art. 5, part first, s. 8. But the person so appointed by the executive was the agent of the people, — responsible to them alone. His commission was from the governor, but in behalf of the people. And though the governor should die, or go out of office, if at the time of the appointment he was duly authorized to act for the people, the commission might be still in force. The plaintiff was appointed register of probate for the eounty of Kennebec, February 28th, 1854. In accordance with the law at that time, his commission was for four •years. As the office was established by the constitution, ¡apd he was appointed to fill it by the people, acting through •.the executive, he bad the right to hold the office until Feb*411ruary 28th, 1858, unless the people, primarily or by some duly authorized agent, removed him from it, — or, by amending the constitution, abolished the office.
In 1855 the people did amend the constitution relating merely to the mode of filling this office. And upon this amendment three questions arise. When did it take effect ? How did it affect the power of the governor and council to remove registers of probate from office ? How did it affect the rights of registers then in office ?
1. When did this amendment take effect ?
The constitution itself provides that amendments proposed by the legislature shall be submitted to the people, who shall vote thereon; “ and if it shall appear that a majority of the inhabitants voting on the question are in favor of such amendments, it shall become a part of the constitution.” The people voted on this amendment in September, 1855. The mode prescribed by the legislature by which the result should “ appear,” was, that the lists of the votes should be returned by the several towns to the secretary of state, and be counted by the governor and council. This count was made in November, 1855, and on the first Wednesday of January, 1856, “return thereof was made to the next legislature,” as the resolves required.
I think that the amendment took effect when the governor and council “counted the lists” returned, and officially adjudicated upon the result. Then it constitutionally “ appeared that a majority of the inhabitants voting on the question were in favor of the amendment.” This duty and power of determining this question were committed to the governor and council in their official capacity, as the executive department of the government; and their decision was effectual and conclusive. So it has been held by this court. Dennett, pet’r, 32 Maine R., 508.
But whether the amendment took effect when the lists of votes were counted and adjudicated upon by the governor and council, or when they “ made return thereof to the next legislature,” is immaterial. Both had been done before the *412governor and council in 1856 assumed the power to remove the plaintiff from office. And I do not understand the majority of the court as denying that upon the performance of one or the other of these acts, the amendment took effect. They say, “ no opinion is expressed, notwithstanding reasons plausible, at least, may exist in favor of the affirmative of one or the other of the alternatives mentioned.”
2. Did the amendment annul the power of the governor and council to appoint registers of probate ?
The only appointing power for this office conferred by the constitution as it was before the amendment, was given by the eighth section of the fifth article. By this section the governor and council were empowered “ to appoint” persons to fill certain offices, among which were “ registers of probate.” By the amendment these words — “registers of probate” — were “ stricken out,” and a section was added, providing for their election by the people.
A subsequent statute repugnant to former statutes operates as a repeal of them, without any express provision to that effect. Commonwealth v. Kimball, 21 Pick. R., 373. But in this case the people not only reassumed the power to fill the office of register of probate themselves, which they had previously delegated to the executive; they actually revoked the authority of the governor and council thenceforth to appoint, by “ striking out” the only provision in the constitution by which that power had been conferred.
I understand, however, that the majority of the court hold that when the amendment was adopted, and the constitution actually amended, “ by striking out the words, £ registers of probate,’ ” the words were not thereby stricken out, nor the provision repealed. They say, “the terms — £and by striking out the words’ — in the resolves cannot be regarded as designed to repeal the existing provisions of the constitution, when the parts added would have no such effect.”
I am unable to assent to this proposition. When the people vote to “ strike out” a provision of the constitution, if that does not repeal it, I am at a loss to know in what way *413any provision of the constitution can be repealed. It is precisely the same language generally used by legislatures in repealing’ portions of any statute; and these have always been held effective for that purpose, whether any provisions have been added or not. To hold otherwise is to hold that the people have no power to repeal any portion of the constitution ; that they cannot strike out, but only add thereto. This will hardly be asserted by any one. But if the people have the power, by any language, to repeal any provision of the constitution, in what way could they have exercised it more palpably than by voting to amend it “ by striking out” the provision empowering the governor and council “ to appoint registers of probate?” To my mind the conclusion is irresistible, that the moment the amendment was adopted, the power of the governor and council to fill that office by appointment, except in the contingencies provided for by the amendment, ceased.
3. What effect did the amendment have upon the rights of registers of probate then in office ?
The amendment did not in any way affect the office, except to limit the tenure of it, when filled by election, to two years. The great purpose of the amendment was to change the mode of filling the office. Those who were then in office were not to be affected by it, until others should be chosen by the people to succeed them. Until then, unless their commissions expired earlier, they were legally in office. If their commissions had expired earlier, then the office would have been vacant; and it would clearly have been a “ vacancy,” (not created by a removal, no power for which was conferred by the amendment,) but a “vacancy occurring by death, resignation, or otherwise,” which the governor and council were empowered by the amendment to fill. But unless their commissions expired before January 1st, 1857, the registers then in office had the right to hold the offices until that time. The people by the amendments had said, “ we revoke, from this day, the power of the governor and council to fill these offices; wo ourselves will choose persons to go *414into them the first day of January, 1857.” How could they have said any more distinctly to those in office, “ you are to remain there until that time?”
It is asked, however, “ if the former authority of the governor and council was struck down by the amendments, on what principle can the tenure of office longer survive irrevocable, when that tenure was by constitutional provisions which . have been annulled ?” And it is said that if the amendment divested the governor and council of the power to appoint registers of probate, then “the rights of those officers under their commissions were swept away by the amendments sst one and the same time.”
The fallacy of this proposition is in the assumption that registers of probate were not the agents of the people,— but merely the agents of the governor and council. If this were so, then,, indeed, the removal of the governor, or a revocation of his appointing power, would have “ swept away ” the official rights of all persons appointed by him. But if registers of probate were the agents of the people, then the revocation of the authority before that time given to the governor and council to appoint, did not affect them. As well might it be contended that the removal of a superintendent of a railroad corporation, or a revocation of his authority to employ servants for the company, would “ at one and the same time sweep away ” the rights of all the employees. It certainly requires no argument to demonstrate that the revocation of that part of a power of attorney by which an agent had been authorized to appoint other agents for the principal, would not revoke the authority of any agents previously appointed by him. Their agency would continue until revoked by the principal himself. So the agency of registers of probate continued until the people, who took the appointing power away from the governor and council that they might exercise it themselves, did actually exercise it by choosing other agents in their places.
It is insisted, however, that the power of removal was still retained by the governor and council under the sixth section *415of the ninth article of the constitution: — “the tenure of all offices which are not, or shall not be otherwise provided for, shall be during the pleasure of the governor and council.”
It is a sufficient answer to this, to say, that if the governor and council had the power to remove under this provision, they have the same power still — which no one pretends. This provision is still in the constitution; and if they have not now the power to remove registers of probate, it is oxdy because the tenure of that office was “ otherwise provided for ” by the amendment. If being “ otherwise provided for*’ took away the power of removal, as in my opinion it clearly did, then it was taken away when the amendment took effect.
It should be noticed, too, that it is the tenure of the office to which it refers; and not the right of any particular incumbent. That the amendment did “ provide for ” the tenure of this “ office,” is beyond all question. It follows conclusively that it was no longer embraced in the provision refei'red to.
I have thus given the reasons why I cannot concur in the doctrines expressed in the opinion of my associates, as much as I regret to differ from them. And there is one other principle, not very distinctly expressed, but apparently pervading their opinion, from which I must dissent. I refer to the idea that, though the amendments took effect when it appeared that they had been adopted by the people, they did not really constitute a part of the constitution until the officers specified had been chosen by the people, and had entered upon the discharge of their duties; that during the year that intervexxed, neither the old provisions, nor the new, were absolutely a part of the constitution; and yet that both were, in some sense, parts of it; that the amendment to the constitution was a gradual process, covering the whole of the year 1856, during which the amended provisions were a kind of constitutional chrysalis, — neither a butterfly, nor a caterpillar, — and yet both the one and the other, as exigencies might reqxiire. I am not certain but that this view found some favor in the Massachusetts opinion, which is cited. But I have been accustomed to regard the constitution as com*416posed, at all times, and at every given period of time, of certain definite, ascertainable words and sentences, actually in force, — and so composing tbe whole of it that no other provisions could, in any sense, be in force as a part of it. I am therefore of opinion that when the amendments took effect, whatever provisions were added were thenceforth actually a part of the constitution; and that whatever was repealed was instantly and absolutely void. There was certainly no provision that the force of the one should be continued, or that of the other be stayed. And as the only provision whereby the people had conferred upon the governor and council the power “ to appoint registers of probate ” was by the amendment “ stricken out,” I believe that the appointment of Francis Davis to that office January 23d, 1856, was unconstitutional and void.