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Latest revision as of 14:33, 22 September 2020
not in the execution of any standing Laws which are considered as the rules of action and the guardian of rights.
By giving this construction ot the term “Office” the meaning of the first section of the ninth article and fourth part of the Constitution appears plain, and the word office therein contained becomes intelligible as to the extent of its import.
An Office being a grant and possession of a portion of the Sovereign Power, it is highly proper that it should be guarded from abuse as far as possible; and to this end, that every person holding an office should be under the obligation of the oath in that Section specified. It appears then, that every office, in the Constitutional meaning of the term, implies an authority to exercise some portion of the sovereign power either in making, executing or administering the Laws. Examined by the foregoing test, the office of Agent created by the Resolve of Feby, 7, 1822, seems to be nothing more than a service or an employment under Executive authority: And not essentially different from the office or employment of State Printer or a contractor to build a State House or a State Prison.
The Agent mentioned in the Resolve is not to be employed in carrying into effect any of the standing Laws of the State; He is to be clothed with no powers, but those of superintending the public lands and performing certain Acts in relation to them under the discretionary regulations of the Governor. Neither the Resolve nor the reason of the thing requires that an Agent in such circumstances should be under the obligations of the oath prescribed in the Constitution. We do not perceive any reason why the term “Office” should receive a construction in one Section different from that which seems proper and natural in another.
The conclusion to which the foregoing reasoning conducts us we believe to be correct and proper; and accordingly we answer the question which you have been pleased to submit to us, in the Negative.
Most respectfully
Prentiss Mellen,
William P. Preble,