The plaintiff was commissioned as register of probate for the county of Kennebec, by the executive of the state, on February 28, 1854, and after being qualified according to law, entered upon the discharge of tho duties of that office. By tho appointment under the constitution and laws of the state, then in force, ho was entitled, upon the fulfillment of his trust, to receive the salary provided, for the term of four years from the date of his commission, unless removed, as he might bo, at any time by the governor and council.

Resolves, entitled “ Resolves providing for an amendment of the constitution, relating to the elective franchise,” were passed by tho legislature, by two thirds of each branch, on March 17, 1855. These provided for the choice of judges and registers of probate, and of sheriffs, by the people of each county; the first election of these officers to take place at the annual election, on the second Monday of September, next after the amendment, providing for such elections, shall have been declared by the legislature to have been adopted as a part of the constitution; and the persons elected to hold these offices for four years, commencing on the first day of January next succeeding their election.

As early as February 28, 1856, when “ the legislature passed a resolve declaratory of amendments of the constitu*404tion,” it appeared that a majority of the inhabitants voting on the questions proposed by the resolves of March 17,1855, were in favor of the amendments, and they became a part of the constitution, according to article 10, section 4, of the constitution of this state. Whether it so appeared, at the time the state of the votes was ascertained by the governor and council, or at the subsequent time, when “ a message was sent to the legislature by Governor Morrill, transmitting the report of council upon the proposed amendments,” according to a proper construction of said section, is a question which we think is not necessarily involved in a proper decision of this case, and no opinion is expressed thereon, notwithstanding reasons plausible, at least, may exist in favor of the affirmative, in one or the other of the alternatives mentioned.

Each of the amendments proposed in the resolves, having received the requisite majority to make them effectual, became a part of the constitution, at the same time, and before the new provisions could become operative. Elections were to take place, and after the votes were counted, and the choice determined, a still farther period was to elapse before the officers elect could commence the discharge of the^ appropriate duties. And in relation to the offices of judges and registers of probate, and of sheriffs, no election could be declared till the legislature had made some provisions by which the amendments could be practically effective. The time of the first election of those officers depended upon that when the legislature should declare that the amendments had been adopted as a part of the constitution. If this declaration had been postponed till after the annual election on the second Monday of September, 1856, it is not seen in what manner the election of the officers named could have been chosen earlier than the annual election in September of the succeeding year. The amendments as contained in the resolves, made no provision in relation to the place to which the votes should be returned, or by whom counted and declared, and notice given to the persons elected. Herein the *405amendments did not differ in character from certain provisions in the original constitution. That became the frame of government, when it appeared to have been adopted by the people, in the mode provided; but in some respects it could not be effectual, till after legislative enactments. As an example of this, we refer to section 1, of article 6, declaring that the judicial power of this state shall be vested in a Supreme Judicial Court, &c. With nothing but the constitution, this provision, important, and it may be said essential to the security of public and individual rights, was lifeless, till the legislature determined the number of judges of that court, and its jurisdiction, or until the executive should make appointment of its members, according to other parts of the constitution.

It is manifest that the additions to the constitution, by the amendments, had no validity at an earlier period than that, when the portion which was stricken out thereby ceased to be a part of that instrument, or the contrary. The parts expunged from the constitution as it formerly was, and those added thereto, in the amendments proposed in the resolves, were designed only to present the reading of the provisions, as they should be under the amendment, and wore the same thing as it would have been to have provided, that instead of such sections as they stood in the constitution at the time the resolves were passed, the following should be substituted ; or that the parts proposed to be changed should be altered, so that they should read as follows. The amendments in the constitution of Massachusetts, adopted in 1855, referred to by the plaintiff’s counsel as being essentially distinguished from those of this state, which we are considering, are believed to be in substance precisely similar, though in form they may differ. The amendments of the constitution of this state contain no express repeal of the provisions of the constitution, intended to be changed, more than do the amendments of that of Massachusetts. The terms, “ and by striking out the words,” used in the resolves cannot be regarded as designed to repeal the then existing provisions *406of the constitution, when the parts added could have no such effect. But the new provisions, as a whole, standing as they do, take the place of the old, without the least regard to the distinction between the parts stricken out of the latter, and those added thereto.

The title of the resolves and the provisions therein, when examined together, show clearly that it was the design, at a time subsequent to that when the amendments should become a part of the constitution, that the offices referred to should be filled by popular or legislative election, and not by appointments made by the executive. Was it not intended that the power of the governor and council to make such appointments, and the right of the incumbents in office, under such appointments, to continue therein, should become extinct simultaneously? The expression of the popular voice in elections, which should annul the former, at the same time was to take away the latter. When the executive was deprived of its previous rights in this respect, and relieved from the performance of its former duties therein, as being in contravention of the amended constitution, how could the officers of its appointment hold their places, when the same amended constitution affirms, that the tenure of office shall be under the declaration of the people’s will, as provided therein ? 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?

The conclusion, to our minds, is irresistible, that the rights of the governor and council to appoint judges and registers of probate, and sheriffs, and the rights of those officers under their commissions, were swept away by the amendments, at one and the same time.

This brings us to the inquiry, at what time did these rights cease ? If they ceased at the time when the governor and council ascertained by counting the votes, that a majority of the inhabitants voting, was in favor of the amend*407ments, or when the report of the council upon the proposed amendments was transmitted to the legislature, the plaintiff has no cause of action, as he makes no claim for any part of his salary which accrued prior to February 1, 1856. If the authority of the executive, and the rights of the plaintiff continued till the legislative declaration that the amendments were adopted, unaffected by those amendments, provided there had been no new executive appointment, the action of the governor and council in removing was constitutional, and this suit must fail.

But it is not contended by either party, that the offices of judge and register of probate, and of sheriff, were suspended from the timo when the amendments became a part of the constitution, till the time when these officers elected by the people, were entitled to assume the duties thereof. The discharge of these duties is so important to the community, that a different construction should not be adopted, unless the language of the resolves absolutely demands it.

The resolves have provided no mode by which the legislature could have caused the performance of the duties of these offices, by those elected under the amended constitution, before January 1, 1857. If it was contemplated that guch officers should exist, and have authority to perform their appropriate functions, as we cannot doubt that it was, under what power were they to receive their commissions, in case of vacancy? "Was it under the constitution as it was before the change, the executive retaining its former authority ; or by virtue of the provision in the resolves, in s. 7, added to art. 6 of the constitution? By this section it is quite obvious that tho vacancies therein mentioned are exclusively those which occur by death, resignation or otherwise, after the elections have taken place under the amended constitution. If, however, it were otherwise, it could not aid the plaintiff in a successful prosecution of this suit, for if a vacancy took place in the office of register of probate in the county of Kennebec, before the first day of *408January, 1857, he was not appointed by the governor and council to supply it.

The amendments, as we have before seen, contain no express abrogation of any of the provisions in the constitution as it was previous to the amendments, excepting so far as the new mode of filling the offices referred to, supersedes, of necessity, those provisions. Hence the old mode of appointment cannot be regarded as repealed, any further than it stands in the way of a practical operation of the mode prescribed in the amendments, and adopted by the people as a part of the constitution. 3 Gray’s R., 602.

Again, the tenure of those offices was not provided for upon the hypothesis that it was not designed by the legislature which passed the resolves, that upon their adoption the offices to be filled by election, should remain vacant till those chosen thereto should commence the performance of their duties; and that the former provisions of the constitution, touching the matter in question, were annulled. In such cases, by art. 9, s. 6, the tenure shall be during the pleasure of the governor and council. This view was anticipated by the counsel for the plaintiff in his argument; and it is insisted that this section has reference only to those offices which the executive have power to fill. This section is under the article entitled “ general provisions,” which treats of matters various in their character, such as commissions to be signed by the governor, the elections required to be made on the first Wednesday of January annually, and the removal of officers by impeachment, and by the governor and council, on the address of both branches of the legislature. The section in question, of itself, or in its connection with other sections in the same article, does not appear to be designed to be affected by the limitation contended for. It is true, that the tenure of elective offices are generally, if not universally, provided for in this state. But we are now examining the tenure of offices which had been filled by executive appointment, and which were to be filled afterwards by those chosen by the people, under the amendments which became parts of *409the constitution, anterior to the time when these officers could act by virtue of their election. No reason is perceived for denying to the executive the authority to make the appointments during this interval, under the provision referred to.

Francis Davis was appointed by the governor, by and with the advice and consent of the council, register of probate of the county of Kennebec, on January 23, 1856; was qualified on February 1, 1856, and on the same day entered upon the discharge of the duties appertaining to that office. In this appointment the executive did not transcend the limits of the power conferred upon it by the constitution. Mr. Davis was by right the register of probate from the time he was qualified to act as such, and his acceptance of the trust, under his commission, operated as the removal of the plaintiff.

Other questions have been discussed in argument, the consideration of which becomes unnecessary, under the view which we have taken.

Plaintiff nonsuit, judgment for the defendant.

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.