The opinion
WERNICK, Justice,
dissenting.
I join in the dissent of Mr. Justice Pomer-oy, adding a comment to explain why I see fit to dissent when it seems that for the third time in the last nine years this Court takes a position contrary to the view I espouse.
Were such appearance actually true, I would not dissent merely because it happens that I was not on this Court when Thoresen was decided in 1968 or when Staples was argued (and, therefore, did not participate in the decision of Staples even though by then I had become a member of the Court). Were these the only factors *473 involved, my attitude would be that for the Court to adhere to the same view three times in the nine years immediately past must surely be enough, and one who disagrees should be willing to submit on grounds of stare decisis. I would feel strongly about this, having written for this Court to “. . . remain a government of laws and not of men . .” ours must always act as a . . government in which the decisions of courts . ” will not be merely “. . the personal policy choices of that handful of persons who happen, at any given moment, to possess judicial power.” State v. Sklar, Me., 317 A.2d 160, 171, 172 (1974).
It eventuates here however, that, despite appearance, the reality is that a majority of the members of this Court have decided contrary to the position Mr. Justice Pomer-oy and I now assert in dissent only once:— in Thoresen, and indeed, there, only a bare majority of the Court had participated. In Staples only three of this Court’s then six-member constituency sat, and today any significance attaching to Staples is further diminished by Mr. Justice Pomeroy’s statement that he now believes that Staples was wrongly decided, and he should not have joined in the opinion. Even in the present case, the opinion of Mr. Justice Delahanty will speak only for a minority of this Court’s present constituency of seven.
In such circumstances, being firmly convinced that Thoresen was wrongly decided, I deem it my obligation to join in dissent with Mr. Justice Pomeroy, thereby to ensure that a majority of the membership of this Court will not yet have upheld Thore-sen on reconsideration. The issue involved will be crystallized as remaining open to await definitive resolution in the future either by action of the Legislature or a subsequent decision by a majority of the members of this Court.