Moulton v. Scully

Spear J,.

While the report of the proceedings in this case is. quite long and many questions of law and fact are raised by the relator, yet only three pertinent inquiries are involved.

The relator was elected and qualified as sheriff of Cumberland County for the term of office beginning January 1, 1913. On the second day of April following, the Senate and House of Representatives passed in concurrence the following resolve:

“STATE OF MAINE.

“Resolve in favor of the adoption of an address to the Governor for the removal of Lewis W. Moulton, Sheriff for the County of Cumberland.

“Resolved, That both branches of the Legislature, after due notice given, according to the Constitution, will proceed to consider the adoption of an address to the Governor for the removal of Lewis W. Moulton, sheriff for the County of Cumberland, for the causes as following:

“First, because the said Lewis W. Moulton, who is now holding office of sheriff for the County of Cumberland, and who has held said office continuously since the first day of January, A. D. 1913, wilfully or corruptly refuses or neglects to perform the duties required of him as such sheriff by section sixty-nine of chapter twenty-nine of the Revised Statutes of this state as amended by chapter forty-one of the Public Laws of nineteen hundred and five, and particularly his duties as said sheriff in enforcement of the law against the illegal sale of intoxicating liquors and the keeping of drinking houses and tippling shops.

“Resolved, the House of Representatives concurring, that these resolutions and statements of causes of removal be entered on the journal of the Senate and a copy of the same be signed by the President of the Senate and served on said Lewis W. Moulton by such person as the president of the senate shall appoint for that purpose, who shall make return of such service upon his personal affidavit without delay, and that the first day of April, at eleven o’clock in the forenoon, be assigned as the time when the said Lewis W. Moulton may be admitted to a hearing in his defense.”

This resolve, with the evidence of its service upon the relator, became the foundation of the hearing and subsequent request of removal, by address. Although the governor acted affirmatively, the attack here made is upon the regularity of the legislative, not the executive, action. The address reads :

“The Senate, and House of Representatives in Legislature assembled present this address to the Governor and request the removal from office of Lewis W. Moulton, Sheriff of Cumberland County, for the causes following: Because the said Lewis W. Moulton, who is now holding the office of sheriff for the County of Cumberland and who has held said office continuously since the first day of January, A. D. 1913, wilfully or corruptly refuses or neglects to perform the duties required of him as such sheriff by section sixty-nine of chapter twenty-nine of the Revised Statutes of this state, as amended by chapter forty-one of the Public Laws of 1905, and particularly his, duties as said sheriff in enforcement of the laws against the illegal sale of intoxicating liquors and the keeping of drinking houses and tippling shops.”

To the action of the Legislature, in moving and adopting the address, and of the governor in removing Sheriff Moulton, he has filed objections and assigned twenty-two causes of error in the proceedings.

But in view of the constitutional jurisdiction of the tribunal that initiated and concluded the proceedings, we are of the opinion that but three of the objections raised authorize or permit of consideration by the court.

If we now proceed to discover the jurisdiction assumed by the Legislature in this case, we find it conferred by Article IX, section 5 of the Constitution, and reads as follows: “Every person holding any civil office under this state, may be removed by impeachment, for misdemeanor in office; and every person holding any office may be removed by the Governor, with the advice of the council, on the address of both branches of the legislature. But before such address shall pass either house, the causes of removal shall be stated and entered on the journal of the House in which it originated, and a copy thereof served on the person in office, that may be admitted to a hearing in his defense.”

By this provision it will be observed that the Legislature in address proceedings, is required to do three things: (1) state the causes of removal and enter them upon the journal; (2) serve notice on the person in office; and (3) admit him to a hearing. Otherwise than this there is no limitation upon the power of the Legislature in the conduct and determination of these proceedings. Whether address or impeachment should have been invoked is a question of interpretation and will be noted later.

It is not in controversy that the Legislature did the three things required. But the objection is that it did not do them right, and consequently had no jurisdiction. It is the opinion oí the court that the objection is not well taken. The address proceedings originated and proceeded under section 5, Article IX of the Constitution. It was a constitutional trial by a coordinate department of the government, the Legislature acting as a constitutional tribunal and limited in authority only by the language of Article IX, section 5. This limitation requires the assignment of causes, notice and hearing, in case of address, as jurisdictional facts. Accordingly the causes stated must be legal causes. The causes contemplated by the constitution can be neither trivial nor capricious. They must be such as specially relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. They must be causes attaching to the qualifications of the officer, or his performance of his duties, showing that he is not a fit or proper person to hold the office. See “Cause,” Words and Phrases, Vol. 2, 1009. It must also appear that the notice required is reasonable, and an opportunity afforded for a hearing.

Under this definition it would seem a sound conclusion that the causes stated in the resolution of address constituted a statement of legal causes within the contemplation of the constitutional requirement. To make the statement clear, it is necessary to repeat the causes stated, in connection with the statute cited, in order that the precise import of the causes may be fully understood. The resolution contains the following allegations: “First, because the said Lewis W. Moulton, who is now holding office of sheriff for the County of Cumberland, and who has held said office continuously since the first day of January, A. D. 1913, wilfully or corruptly refuses or neglects to perform the duties required of him as such sheriff by section sixty-nine of chapter twenty-nine of the Revised Statutes of this State, as amended by chapter forty-one of the Public Laws of nineteen hundred and five, and particularly his duties as said sheriff in enforcement of the law against the illegal sale of intoxicating liquors and the keeping of drinking houses and tippling shops.”

The statute referred to, as amended, reads as follows: “Sheriffs and their deputies and county attorneys shall diligently and faithfully inquire into all violations of law, within their respective counties, and institute proceedings in case of violations or supposed violations of law, and particularly the law against illegal sale of intoxicating liquors, and the keeping of drinking houses and tippling shops, gambling houses or places, and houses of ill fame, either by promptly entering a complaint before a magistrate and executing the warrants issued thereon, or by furnishing the county attorney promptly and without delay, with the names of alleged offenders, and of the witnesses. Any sheriff, deputy sheriff or county attorney, who shall wilfully or corruptly refuse or neglect to perform any of the duties required by this section, shall be punished by fine not exceeding one thousand dollars or by imprisonment not exceeding one year.” The causes here assigned clearly and fully state a case of non-feasance, which is defined as “an omission to perform a required duty at all, or a total neglect of a duty; the omission of an act which a person ought to do.” See “Non-feasance,” Words and Phrases, Vol. 5, Page 4821. In fact the title of chapter 41, Public Laws, 1905, is “An Act providing penalties for non-feasance of duty by sheriffs,” etc. Under the statute cited, there can be no question that non-feasance specially relates to and affects the administration of the office of sheriff, and is of a substantial nature directly affecting the rights and interests of the public; and, as such non-feasance is punishable by fine or imprisonment, it manifestly constitutes a charge of unfitness to hold office.

" As the relator appeared with counsel and was fully heard in an exhaustive trial that lasted several days, no question can be raised as to notice or hearing. We can assume that these jurisdictional requirements are established, and hereafter in referring to jurisdiction it will be upon the assumption that these two requirements are settled.

But it is urged that the causes stated were not sufficiently, specific to give jurisdiction. This is not a valid objection, for two reasons. (1) Because when legal causes are stated and entered upon the journal, there the constitutional limitation ends, and the legislative prerogative begins, so far as a statement of causes is concerned; and having acquired jurisdiction the Legislature may file further specifications or not as it may see fit. (2) Because the causes stated are in the language of the statute, as specific as the nature of the case will admit, and, we think, would sustain an indictment.

Under the first reason, as a matter of constitutional interpretation, it may be said, after the Legislature has properly observed the jurisdictional facts and thereby acquired jurisdiction of the case, that, beyond this, all matters of procedure, specification and detail, are left necessarily to the discretion of the Legislature, as acts of sovereign power, as no other way has been prescribed by the Constitution. It could not originate in the courts, nor are the courts given either original or appellate jurisdiction. It must be initiated by the Legislature; be tried by the Legislature; and determined by the Legislature.

This view, we think, is also substantiated by authority so far as the courts have had occasion to pass upon the issue. Necessarily this precise question has become a matter of judicial review but infrequently. In Massachusetts judicial officers may be removed by address, but neither charges, notice or hearing are required by the terms of the Constitution. In Commonwealth v. Harriman, 134 Mass., 314, it was held that the power of removal was absolute and could be exercised by the Legislature without limitation or restriction. It is there said: (1) “In confiding to the two coordinate branches of the government this important and exceptional power of removing the judiciary, the people found a sufficient protection to the substantial independence of the judicial department in the constitutional guaranties thrown around it, in the fact that the removal can only be made by the concurrent action of both houses of the legislature and of the governor and council, all of whom are directly answerable to the people at frequently recurring periods, and in the trust and confidence they may rightfully repose in their servants and agents that in the exercise of any power committed to them they will act in obedience to their oaths of office and in the spirit of the fundamental principles of the Constitution.” (2) “When we consider the origin and history of the provisions, the obvious and natural meaning of its language, and the uniform practical construction which has been given to it, we are forced to the conclusion that the intention of the people was to entrust the power or removal of a judicial officer to the two coordinate branches of government without limitation or restriction. . . . The constitution authorizes the removal without any reason being assigned for it; and therefore it is wholly immaterial what evidence or causes induced the legislature to vote the address.” By a parity of reasoning, our Legislature, when it has once ácquired jurisdiction, is supreme.

In New York is found a case which becomes a strong precedent for the interpretation herein presented. The case is In re Guden, Sheriff, N. Y. Appeals, 64 N. E., 451. This case was decided in 1902 under a provision of the New York Constitution, expressed in this language: “The governor may remove any officer in this section mentioned (sheriffs, clerks of counties, district attorneys, and registers in counties having registers,) within the terms to which he shall have been elected; giving to such officer a copy of the charges against him and an opportunity of being heard in his defense.” With the exception that our constitution requires notice, as well as causes and opportunity to be heard, the phraseology of the New York constitution is in effect the same as ours; and, so far as the interpretation of the New York constitution bears upon the power of the governor to remove an officer, the two instruments may be regarded as identical, since the chief executive of a state, and the Legislature of a state, are each an equally independent department of the government and equally sovereign in the exercise of their respective powers. The language of the New York constitution is thus construed: “It does not require argument to persuade the mind that the power thus conferred is executive, not judicial; and that it was intended to be vested exclusively in the governor.”

The New York case also becomes of peculiar strength upon this issue, since the question was raised'by one of the Justices, who concurred in the result but dissented from the reasoning of the opinion, that the proceeding should be regarded as judicial and not as executive. But notwithstanding this contention, the court concluded as follows, C. J. Parker speaking for the court: “Therefore we do not examine into the merits, for they do not concern this court, as both the power to decide whether Guden should be removed from the office of sheriff and the responsibility for a right decision rest solely upon the governor of the state.” This decision sustains the interpretation placed upon Article IX, section 5 as to the power thereby vested in the Legislature.

We have failed to find any other pertinent authorities. But, both upon reason and the authorities found, we are unable to avoid the conclusion that the Legislature, under the Constitution, in address proceedings, after it has acquired jurisdiction, is acting in the exercise of sovereign power,. and is accountable only to the people for the manner in which it performs its functions.

But the relator contends that this proceeding should be regarded as judicial and governed by the established rules of law touching legal proceedings of a similar nature, and cites with confidence Andrews v. King, 77 Maine, 224. But the fallacy of this contention is its failure to differentiate between a sovereign tribunal like the Legislature, the executive or the judiciary, and a subordinate tribunal like a'board of aldermen or other inferior body. So far as we have been able to note the authorities, this distinction is universally observed. People ex rel v. Krulish & Fornes, et al., (N. Y. App.) 67 N. E., 210; Meacham v. Common Council, 62 N. J. Law, 302. See also Sawyer v. Gilmore, 109 Maine; Tremblay et als. v. Murphy et als, Maine, not yet reported. Nor do we find any text writer who disagrees with these conclusions. If, then, the Legislature has done the three jurisdictional things required by the Constitution, it is apparent that all the other objections become immaterial and require no further consideration. .

The many other objections interposed by the relator are matters for the attention of the people and not for the action of the court.

Under the second reason we come to the sufficiency of the causes. While it is obiter dicta, it may yet throw some light upon this question, to review the causes in the light of criminal pleading. It will be observed that the causes for adopting the address are expressed in the language of the statute, with a further reference to, and therefore incorporation of, the whole statute under which they were made.

The way of stating the causes in the resolve is analogous, at least, to the rule o'f pleading which permits certain statute offenses to be set out, in an indictment or complaint, in the language of the statute. The causes specifically state that the relator “who has held office continuously since the first day of January, 1913, wilfully or corruptly refuses or neglects to perform the duties required of him as such sheriff by section 69 of chapter 29 of the Revised Statutes, as amended by chapter forty-one of the Public Laws of nineteen hundred and five, and particularly his duties as said sheriff in enforcement of the law against the illegal sale of intoxicating liquors and the keeping of drinking houses and tippling shops. It will be observed that this statute, in the language of which, these charges were made is comprehensive, applying to a failure to enforce all statutes against the sale of intoxication liquors, and imposes a penalty upon any sheriff “who shall wilfully or corruptly refuse or neglect to perform any of the duties required by this section.” The causes say that the relator did wilfully or corruptly refuse or neglect to perform the duties of his office in these regards. The sheriff is presumed to know the statute relating to the illegal sale of intoxication liquors and his duties touching its enforcement. Commonwealth v. Ashley, 2 Allen, 356; Commonwealth v. Raymond, 97 Mass., 567. In the latter case, it is said: “Under this clause, as under the laws against the sale of intoxication liquor or adulterated milk, and many other police, health and revenue regulations, the defendant is bound to know the facts and obey the law, at his peril. Such is the general rule where acts which are not mala in se are made mala prohibita from motives of public policy, and not because of their moral turpitude or the criminal intent with which they are committed. 3 Greenl. Ev., Sec. 21. Commonwealth v. Boynton, 2 Allen, 160; Commonwealth v. Farren, 9 Allen, 489; Commonwealth v. Waite, 11 Allen, 264.”

No requirements of the statute could be better known to a sheriff than those which prescibe and define the different forms of offenses arising from violations of the prohibitory law. These various offenses have been upon the statute books for half.a century and the particular injunction upon sheriffs to enforce the statutes under which the present charges were made, has been the law of this State for at least thirty years. And the plain object of the amendment of 1905 adding a penalty for non-feasance, was to prevent neglect or refusal by officers to enforce the law.

If, then, the sheriff was “bound to know the facts and obey the law,” and he was, Commonwealth v. Raymond, supra, how could he be better or more fully informed of the offense with which he was charged ?

It is the general rule that statutory offenses may be set out in general terms in the language of the statute of its equivalent. State v. Robbins et al., 66 Maine, 324. In Ency. of P. & P. Vol. 10, Page 483, we find the following: “Language of Statute. (1) General Rules. While it is essential that all the facts constituting an offense must be so ptated as to bring the defendant precisely within the law, it is a rule of universal application that when a statute creates an offense and sets out the facts which constitute it, the offense may be sufficiently charged in the language of the statute.” Under Note 2 it is said: “This rule is so well known and universally accepted as hardly to require citation of authorities to support it.” And a long list of cases from all the leading states of the Union is referred to in support of this doctrine. But the cases from Maine and Massachusetts seem to cover all the ground involved in this particular issue.

State v. Casey, 45 Maine, 435, is a case in which the indictment was for keeping a drinking house or tippling shop and was set out in the language of the statute of 1856, which read, “no person shall keep a drinking house or tippling shop within the state.” The court say: “The only charge in the indictment is, that the defendant did, at the time and place named therein, "keep a drinking house and tippling shop, contrary to the form of the statute.’ ” There is another section of the same statute, defining the offense, and providing that it shall consist of certain specified acts; and it is contended that this description should have been set out in the indictment. This is precisely what is claimed by the relator. After giving the general rule of criminal pleading, the court then states the rule in statute offenses: “But where the offense is prohibited in general terms in one section of the statute, and a penalty prescribed, and in another section, entirely distinct, there is a particular description of the elements which shall constitute the offense,, we perceive no reason, -upon principle or authority, why the indictment should contain anything more than the general description. That gives the defendant sufficient notice of the charge he is to meet, as effectually as if the whole description should be incorporated into the indictment.” It will be observed that the statutory, offence considered in the opinion and the statutory offence before us, in legal contemplation, are practically identical. Under the latter statute “the offense is prohibited in general terms in one section of the statute and a penalty prescribed, and in other sections of the chapter, entirely distinct, there is a particular description of the different requirements of the statute, a refusal or neglect to enforce which, constitutes the offense.”

State v. Collins, 48 Maine, 217, is another case in which the indictment charged that T. C. at a time and place named, “did keep a drinking house and tippling shop contrary to the form of the statute.” Upon a motion in arrest of judgment the full opinion of the court reads: “In this case the indictment is sufficient. It is true that the prohibition, and the definition of the offense, by the statute of 1858, section 10, are in the same section. But the provisions are in distinct and separate clauses, as much as in the statute of 1858. In the case of State v. Casey, 45 Maine, 435, the word ‘section’ was used inadvertently in the opinion of the court, owing, probably, to the fact that, in the statute then under consideration, the provisions were in distinct sections. But whether in distinct sections, or clauses, can make no difference. The offense, like that of being a common seller of intoxicating liquors, is made sufficiently certain by the terms used in the enacting prohibitory clause.” It should here be noted that the offense and the definition are in the same section. Yet the definition was not necessary.

Commonwealth v. Ashley, 2 Gray, 356, was an indictment in the language of the statute for keeping a house of ill-fame. The court say: “And we are of the opinion that this is a case in which the indictment so framed, is sufficient; because no allegation of anything more than these words, ex vi terminorum, import is necessary in order to show that the defendant has committed the statutory offense.” We think the causes stated in the case before us come clearly within the reason here stated. The statute says: “Any sheriff . . . who shall wilfully or corruptly refuse or neglect to perform any of the duties required by this section shall be punished,” etc., and the causes say that the relator did wilfully or corruptly refuse or neglect to perform these duties; no allegation of anything more than these words, ex vi terminorum, is necessary to show that the relator in the case before us has committed the statutory offense. Then the court states the rule: “According to the rule of pleading, laid down in 2 Hawk., c. 25, sec. ux, 111 is sufficient, in an indictment, to pursue the very words of a statute, if by so doing the act, in the doing of which the offense consists, is fully, directly and expressly alleged, without any uncertainty or ambiguity. That is done in the present indictment.”

In Commonwealth v. Maloy, 119 Mass., 347, the court states the rule in this way: “Where a statute embraces all the ingredients of the offense intended to be punished, and the language used described such offense with legal certainty, an indictment or complaint may well charge the offense in the words of the statute.” In Commonwealth v. Dyer, 128 Mass., 70, the rule is stated in this language: “When an offense is created by statute, which sets forth with precision and certainty all the elements of the offense, an indictment or complaint is sufficient which charges the offense in the words of the statute.” The statute in the language of which the present charge was made sets forth with precision and certainty all the elements of the offense with which the relator is charged, as the reading of the statute will clearly show, and the charges would seem to be sufficiently specific to sustain an indictment.

All these citations, it should be observed, relate to indictments or complaints for statute offenses, involving definite acts of misfeasance, where particular acts might well have been stated. Yet the general rule would seem to be well established that these offenses can be set in the language of the statute or its equivalent. But there is an exception to the rule, which we find clearly stated in Commonwealth v. Barrett, 108 Mass., 302. The rule and exception are stated as follows: “It is a general rule that, where an offense is created by statute, an indictment or complaint is sufficient which charges the offense in the words of the statute. Commonwealth v. Raymond, 97 Mass., 567. There is an exception to the rule, where the words of a statute may, by their generality, embrace •cases falling within its literal terms, which are not within its meaning or spirit. In such cases, the offense intended to be made penal is ascertained by reference to the context, and to other statutes in pari materia, and the indictment or complaint must allege all facts necessary to bring the case within the meaning and intent of the legislature.”

It will be observed that the words of the statute which we are •considering are not general, but specific, alleging one specific offense and no more. No other case could fall within its literal terms. No other charge could be brought under it. The only offense specified in this statute is a failure to act as the section commands; is a single, continuing, habitual offense; purely statutory; malum prohibitum; unknown to the common law; embraces a single charge, — nonfeasance; and neither concerns nor is concerned with any other provision of the statute. It cannot be construed in pari materia nor with reference to the context. The meaning and intent of the Legislature is clear. ' It does not, therefore, come within the scope of the exception. But it is said the causes should have specified particular cases of refusal or neglect on the part of the relator; that, under the, causes assigned, he was unable to know from what place in the county he would be called upon to confront the witnesses against him. But this claim, under the offense charged in this case, is specious rather than true. It should be here noted that the sheriff and his deputies are one in the enforcement of the laws and protection of the people against infraction of the laws, R. S., chap. 82, sec. 8, authorizes the sheriff to appoint deputies, “for whose official conduct and neglect he is answerable.” The causes charge that he wilfully or corruptly refused or neglected to perform his duties as sheriff in enforcing the prohibitory law in the County of Cumberland over which his jurisdiction extended. Did he not know what he, himself, had done to enforce the prohibitory law? Enforcement is a specific, active performance of which the sheriff must have not only absolute knowledge but in most cases, record evidence. All it was necessary for him to do, when charged with non-feasance, covering a definite space of time, as in this case, was to bring forth his records of enforcement, from every part of the county covering the period, with all other evidence showing just what he had done, and his defense was all in. Because every search and seizure where a warrant is issued is of record; every nuisance case is of record; every drinking house and tippling shop prosecution is of record; every single sale procedure is of record; every charge for illegal deposit or keeping is of record. Every one of these various forms of prosecution, if instituted, was particularly within the knowledge of the sheriff, and not in the knowledge of the Legislature. Accordingly, the general'charge of non-feasance covers every one of these offenses, and the answer to every charge was absolutely within the knowledge, and easy procurement of the relator. The charge did not say, nor was it intended to say, that the relator had not enforced the law in particular towns or cities, nor could it be the whole truth. Within the intention of the causes required by the Constitution, it intended to say just what it did say, that the relator had not enforced the law in any particular town or city, nor anywhere else in the county; and this was the charge which he was required to meet, and which, as above seen, he had every facility, which the truth could afford, for refuting. There could be no surprise. His defense was simply to show what he had done. The causes assigned gave him notice to do this and nothing more. “ His field of defense was wide open. There was no restraint, technically or otherwise, upon it. It was open to him to show every search and seizure and every prosecution, advised or instituted by him or his deputies, under his orders, or without his orders, under the several forms of prosecution of the prohibitory law, which he is charged with refusing or neglecting to enforce. We are unable to discover how he could have been more fairly or more fully informed of the offense with which he was charged, than in the causes stated, or how he could have ever been better prepared to defend, than against this charge, where all the evidence, if any existed, had been the product of his own action and absolutely within his grasp.

We now call attention to 'the consideration that the offense of non-feasance, described in section 69, as amended, falls within a special line of decisions which are peculiarly adapted to this class of cases, touching the manner of pleading the charge. It will be readily seen that there is a marked difference between describing misfeasance and non-feasance; one a definite act which the law forbids; the other a failure to act, where the law commands an act. The former consists in doing something; the latter consists in doing nothing; in the former there is some act to specify; in the latter no act to specify. There is no act of any kind. There is habitual and continued omission to act; a course of conduct; a habit of wilful or corrupt refusal to perform the duties required by the statute. It is readily apparent that it is impossible to particularize a continual course of non-action. What a person does not do, can be described only in general terms, in a negative way.

Pertinent to this condition of things is Commonwealth v. Pray, 13 Pick, 359, in which the caurt say: “Wherever a crime consists of a series of acts, they need not be specially described, for it is not each or all the acts of themselves, but the practice or habit which produces the principal evil and constitutes the crime.” Then follows several cases as illustrations of this rule, one of which seems to be peculiarly pertinent, for it involves neglect. It is said: “It is made the duty of towns to keep in repair highways within their limits; and for a neglect of this duty they are liable, not only to indictment, but if any individual injury occurs by rea-, son of it, to a civil action. In indictments and declarations of this statute, which are of almost daily occurrence, the practice has never been to set forth minutely the defects of the highway. But a general allegation, that a certain highway is out of repair, ruinous and unsafe, has always been deemed sufficient.” The same rule is found in Stratton v. Commonwealth, 10 Metcalf, 217, the court saying: “We have no doubt, in looking at the present case, that from the very nature of the offense here charged, it being not a particular act, but a continual series of acts or habit of life, that constitutes the offense of being a common railer and brawler, it is properly set forth by the same general description of the crime charged, that would be good in case of the common barrator or common scold.”

We have thus far considered the specification in the light of the charges necessary to be set out in an indictment or complaint. But it was not incumbent on the Legislature, under Article IX, section 5, to observe the same particularity required in an indictment. In re Guden, supra. Throop Pub. Off., section 389; Burt et al. v. Iron County, 108 Mich., 523; Cyc., 29, 1409 d. note 26; Andrews v. King, 77 Maine, 224.

We now come to another objection to the action of the Legislature, namely: “That the removal of officers by address under section 5 of Article IX of the Constitution did not contemplate the removal of the officer for official misconduct.” If this contention could be established, the action of the Legislature in the case before us would, of course, be void. It would be without jurisdiction under the Constitution. But the contention is untenable. Where this question has been passed upon by the courts, it has been held by all the authorities, so far as we have been able to discover, that the removal of officers by impeachment for misconduct in office was not an exclusive method, but concurrent with other methods of removal which might be provided for the same cause. Throop on Public Officers, section 400. In Commonwealth v. Harriman, already cited, this issue was sharply raised and exhaustively considered by the court. Not only is the provision of the Constitution, authorizing impeachment and address, carefully considered, but the history of the events both in England and Massachusetts, which led up to the adoption of the provision, is reviewed. The opinion states the contention of the defendant as follows: “The principle ground upon which he founds his claim is that the charges upon which he was removed were charges of misconduct and mal administration in office, for which he was liable to impeachment, and that the constitutional power of removal by address does not include the power to remove for offenses which are impeachable. This question is an important one.” But this contention was overruled as follows: “The language is broad and general, in its terms it includes a removal for any cause which is deemed by the Legislature and executive departments sufficient. If it had been intended to exclude from this provision the power to remove for misconduct in office, leaving that to be dealt with by impeachment exclusively, it would have been so stated. Neither this article nor the article on impeachment contains any indication that the power of impeachment was to exclude the power of removal by address. We must give to the proviso the broad meaning which its language imports.” The language in our Constitution is equally broad and general, as a comparison will show.

It hardly seems possible that the framers of the fundamental law upon this subject could have used language so loosely as the construction of the relator would seek to imply. On the other hand, it rather seems to us that the language is so plain that it is difficult to see how any rules of construction can apply other than the fundamental rule “that words and phrases should be construed according to the common meaning of the language.”

A single point remains to be considered, a point raised neither by the pleadings nor in argument. It nevertheless should be examined.

It is contended that, as the constitutional amendment, commonly known as the initiative and referendum, adopted by the people under chapter 121 of the Resolves of 1907 provided in section 16 that “no act or joint resolution of the legislature, except such orders and resolutions as pertain solely to facilitating the performance of the business of the Legislature, etc., shall take effect until ninety days after the recess of the legislature passing it unless in case of emergency,” etc., and as the address proceedings in the case originated in a joint resolution of the Legislature, it follows that this resolution could not take effect until the expiration of ninety days from adjournment. This would permit the securing of a written petition containing at least ten thousand names, addressed to the Governor, requesting that the resolve be referred to a popular vote and would thereby suspend the effect of the resolution until ninety days after the Governor shall have announced by public proclamation that the resolution has been ratified by a majority of the electors voting thereon at a general or special election. Section 17.

In other words, it is claimed that address proceedings for the removal of a public officer are, under the constitutional amendment providing for a referendum, held up at the very inception because the resolution on which they are based cannot in any event take effect until ninety days after adjournment.

Can this be so? In our opinion such a contention is without foundation.

It seems to proceed upon the theory that merely because the word “resolution” or “resolve” is used in the constitutional amendment, and a resolution was adopted by the legislature as the basis of these proceedings, the court has no power to construe these terms, cannot distinguish between them but must blindly accept the word resolution in both cases as having the same meaning.

It is, howéver, a fundamental duty of the court and within its exclusive province to construe both statutes and the Constitution and to ascertain not only from the words themselves but from the context, from the purpose to be sought, and in some cases from the result attending upon one construction or the other, what the real intention of the law making power was and how the expressed intention should be interpreted. This principle is too familiar to require the citation of authority.

The precise question for the court to determine on this branch of the case, therefore, is whether the joint resolve which was the first step in these address proceedings was such a resolve as is within the scope or contemplation of the referendum. This question must be answered in the negative.

The fallacy of the claim lies in the failure to distinguish between the Legislature as a law making body and the Legislature as an impeaching or addressing body. In the former capacity it is performing the usual function of any legislative assembly, in the latter it is exercising the unusual powers expressly conferred upon it by the Constitution, powers somewhat akin to those of a judicial tribunal. The two are absolutely distinct and the referendum applies to the one but not to the other.

This legislative power is specified and defined in Article IV of the Constitution, which, in part first, treats of the House of Representatives as one branch of the Legislature, in part second, of the Senate as the other, and in part third, of the Legislature as a whole, composed of both branches.

It is this Article IV which in express terms is amended by the resolve creating the initiative and referendum, Resolves, 1907, chap. 121, and it is the only article in the Constitution that is thereby amended.

Section 1 of part first of Art. IV is amended by striking out the words “the style of their laws and acts shall be ‘Be it enacted by the Senate and House of Representative in Legislature assembled’ ” and inserting in place thereof “but the people reserve to themselves power to propose laws and to enact or reject the same at the polls independent of the legislature, and also reserve power at their own option to approve or reject at the polls any act, bill, resolve or resolution by the joint action of both branches of the legislature, 'and the style of their laws and acts shall be ‘Be it enacted by the people of the state of Maine.’ ”

Then follows the amendment to section 1 of part third of Article IV so as to read “The legislature shall convene on the first Wednesday, of January, biennially, and, with the exception hereinafter stated, shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this state, not repugnant to this constitution, nor to that of' the United States.”

And finally come the various sections, numbers 16 to 22, which provide for the initiative and referendum and which are made additional to part third of Article IV, that part, before amendment, consisting of fifteen sections only.

The purpose and scope of these amendments are obvious. The design was to have the legislative power not final but subject to the will of the people, a will to be called into exercise by the somewhat complicated machinery of the referendum. Before amendment “their laws and acts” bore the title of “Be it Enacted by the Senate and House of Representatives in Legislature assembled.” Since amendment the title has been “Be it enacted by the People of the State of Maine,” the people and not the Legislature being the real arbiters of the laws to be finally accepted. That is, the central idea of the change was to confer the law making power in the last analysis upon the people themselves, a step from representative toward a democratic form of government. This, too, marks the limitation of the amendment. It applies only to legislation, to the making of laws, whether it be a public act, a private act or a resolve having the force of law.

This is shown clearly and conclusively by the language of sec. 2 of part third of Article IV, under the general head 'of “legislative power.” “Every bill or resolution having the force of law to which the concurrence of both houses may be necessary . . . which shall have passed both houses, shall be presented to the Governor, and if he approve, he shall sign it,” etc. The referendum applies and was intended to apply only to acts or resolves of this class, to “every bill or resolution having the force of law,” that is, to what is commonly known as legislative acts and resolves, which are passed by both branches, are usually signed by the governor and are embodied in the Legislative Acts and Resolves, as printed and published. And the words “No act or joint resolution of the Legislature,” etc., before quoted, in the referendum amendment must be construed in the light of the context, considering all the sections and parts and articles together, as meaning “no act or joint resolution of the legislature having the force of law.” This is the simple and plain interpretation of simple and plain language.

So much for the Legislature as a law-making body and for the class of acts and resolves covered by the referendum.

Now let us turn to another and distinct power lodged with the Legislature by the Constitution, that of preparing an address to the Governor for the removal of a public officer. This power is conferred not under Article IV, before considered, the article which was amended by the referendum, but under a distinct provision, viz.: Section 5 of Article IX, the article being entitled “General Provisions,” and covering a wide variety of subjects. Section 5 reads: “Every person holding any civil office under this State, may be removed by impeachment for misdemeanor in office; and every person holding any office may be removed by the Governor, with the advice of the Council on the address of both branches of the Legislature.” . This section remains unrepealed and unamended. The referendum amendment did not refer to it and did not affect it. Under this section and within this distinct category falls the resolution in the case at bar. It was passed by the Legislature in no sense as a legislative act, as a law nor as a proposed law, but was rather in the nature of a complaint in a criminal proceeding. It wras the first step in setting in motion the machinery of removal, and in the exercise, of an extraordinary power conferred upon one of the three great departments of government, but entirely apart from the ordinary powers of legislation as such. It was a resolution, or vote or expressed determination to proceed to the trial of a public officer. It preceded the trial itself, was preliminary to it, and the logical conclusion of the theory of the contention is that as this resolution could not become effective until at least the expiration of ninety days from the adjournment of the Legislature, the subsequent trial whether held or not, and its outcome whether favorable or not to the accused, would be wholly immaterial since the people have the right to determine whether the resolution should be effective and any trial at all held. This, of necessity, would work a repeal of so much of section 5 of Article IX as relates to address proceedings and would effectually deprive the Legislature of the power thereby expressly conferred, because if no resolve of this nature can take effect until the expiration of at least ninety days after adjournment, and perhaps not even then, the Legislature, the constitutional tribunal, would then have ceased to be in session and no trial could be had at all. In effect this would be an attempted transfer of the proceedings for removal of a public officer from the Legislature to the people at large and would effect an impracticable and quite impossible species of recall.

It is almost inconceivable that such a revolutionary result could have been within the contemplation of the Legislature that in the first instance submitted to the people the referendum amendment, or within the contemplation of the people who adopted it. If such was the purpose, section 5 of Article IX would itself have been amended, and by no reasonable stretch of judicial power can the express amendment of Article IV, the legislative power, be construed to work an implied amendment and practical repeal of section 5 of Article IX, the address power.

It is impossible for a majority of the court to accede to the doctrine of the relator’s contention on this point. On the contrary, we hold that the power of the Legislature to recommend the removal of a public officer by address still abides unshorn, as it has existed since the adoption of our constitution in 1820, that this important safe-guard of public welfare was neither repealed nor abridged by the adoption of the initiative and referendum, and therefore that the resolve in the case at bar became effective upon its adoption.

From a parliamentary point of view, it seems clear that the address resolve did not come within the referendum amendment. Article IX, section 5 confers upon the Legislature a special jurisdiction. It will be conceded that each equal and coordinate department of government is sovereign within its sphere of action and may determine its own rules of procedure. Jefferson’s Manual holds that each branch of Congress was authorized “to determine the rule of its own proceeding.” This rule has been adopted by all legislative bodies so far as we are aware and is in force today. Parliamentary rules of order everywhere make use of the word “resolve” as the most apt in serving the legislative purpose, whether national or state. When the Legislature commands, it is by an order; but when it gives expression to a fact, a principle, its own opinions and purposes, it is expressed in the form of a resolution which, through parliamentary usage, has become conventional. But there is a clear distinction between such resolves and those having the force of law. The present resolve was “in favor of the adoption of an address to the governor” as provided in Article IX, Section 5, the performance of a special duty, in a certain special manner. In other words, the resolve raised the question whether the Legislature should, in that instance, vote to take action on a case within its special jurisdiction. It was the only practical way to get an expression of opinion of the legislative body, to ascertain the legislative will, and its determination to do or not to do the thing proposed. Every move related to instituting the proceeding under its special jurisdiction; and the resolve, which was the conventional way, or some other form of expression, was a necessary step in the premises required by Article IX, and had no greater significance than, “shall the main question be now put,” or a “demand for the previous question” or “that the bill providing for removal by address be made a special order for a day certain.” Inasmuch as Article IX, section 5 was not amended in terms and provides for the removal of officers by address, it seems conclusive that the resolve was but the parliamental instrumentality by which the Legislature set in motion the wheels of its special power.

Again, if the referendum applies to Article IX, section 5, so does the initiative with equal force and we find ourselves confronted with the astounding situation never before suspected, either by the Legislature which passed the referendum amendment, the governor who signed it, or the people who voted for it, namely, a recall of every officer named in Article IX, section 5 by a popular petition to the Legislature of not less than twelve thousand electors.

It might with propriety be added, that up to the present time this has been the universally accepted view. It is a matter of pubr lie knowledge that the Legislature of 1911 adopted similar proceedings in addressing the governor on the removal of a public official and the official was removed. Neither the members of that Legislature, nor the eminent counsel employed nor the public generally even conceived of the idea that the removal was void because the preliminary resolve was within the referendum amendment and therefore had never taken effect.

In the case at bar the eminent and learned counsel for the relator assigned in their information no less than twenty-two distinct causes of error and in their able and comprehensive brief set forth seven grounds for holding the removal illegal, but that of the referendum is not found among them.

While the absence of such a claim on the part of those charged with the management of so important a cause as this is, of course, not conclusive as to its lack of merit, yet its omission, to say the least, must be regarded as significant.

Upon full consideration of the whole case, it is the opinion of a majority of the court, that the relator was lawfully removed from the office as sheriff of Cumberland County, and the entry must, therefore, be,

Information dismissed with costs.