The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1867-12-19
STATE OF MAINE, Elk. DEPARTMENT, !


BANGOR, Dec IS, 1867.
The undersigned Justices of the Supreme Ju-
dical Court have the honor to submit the
following answer TO the interrogatory pro-
In 1916 the opinion of this Court was re.
queSted upon the question whether it was
competent for the Governor and Council in
counting votes for coun y officers under the
from the town clerk and selectmen, evidence
to show that the return made by them did not
correspond with the record. efio5 5aT ~
The Court in their opinion say, that the
Governor and Council were no otherwise
judges of these elections than "to open
and count the votes returned" and that
they were not authorized to receive
any other evidence in relation to the votes
than what the certificates prepared in accOr-
dance with the law, transmitted and received,
may contain" They are to compare the votes
and in SO doing, to ascertain who, if any one,
is elected, and if any one is found thereupon
to be elected it will become the duty of the
Secretary of State to issue notice to him of his
election, and if no one should be ascertained
to be elected, the Governor, with the advice OF
the Council, must make an appointment to fill
the vacancy. "The powers conferred upon the
Governor and Council are specific and precise;
and it is believed it would be irregular to go
beyond them, or in any manner to deviate from
them. If they could receive evidence that the
certificates we're erroneous in one particular,
they might, with equal propriety, do so in any
OtnerS, ana so exercise Jne power OF Judges OF
those elections generally and without restric-
ton % Me. 56S. The same views were re-
affirmed in Baron VS.. York County Commits
sioners," 26 Me. 494. 5
The legislature, the opinion of this Court as
to the power of the Governor and Council in
cases like the present haying been ascertained
saw fit to enlarge those powers only by linn
tied extent. r. S. 1867, c. Is, 5, "The Gov
ernOr and Council on OF before the first day of
December in each year. shall open and COM
tha or ratIy nd ma
| testimony on oath to prove that the return
| from any town does not agree with the re-
| cord of the vote of such town in the number of
votes, or the names Of the persons uoted for, and,
| to prove which of them is correct; and the
| return, when found to be erroneous may be
| corrected by the record" a.d l..5f
The power OF the Governor and Council in
relation to the matter under consideration,
was increased in two respects only-the num-
Der of votes and the names of the persons
| voted for. 1u other respect was their au-
| thorty enlarged. The correction of errors is
| limited by the section above cited. The lam.
guaee of the statute is clear and precise. Its
| meaning is obvious. Had the Legislature in
tended to have conferred more extensive au-
thority on the Governor and Council, they
would have indicated such intention.
By r. S. 1857, A., s. %, "No ballot shall
| he received at any election of State or town of
| fcers, unless in writing or printing upon clean
white paper, without any distinguishing
| marks or figures thereon, besides the. name of
the person voted for, aud the Office to be filled;
| but no vote shall be rejected on this account,
after it is received in the ballot box"
| We do not understand from the question
proposed that the facl that certain votes had
Distinguishing marks or figures thereon"
| appeared on the return made to the Governor
and Council. but the reverse. By the previ-
GUS decision of this Court it has been held that
| they were not authorized to correct any error
in the returns before them by resortiug to ex-
trinsic evidence. The Legislature have by
| Section B, indicated the extent to which error
may be corrected, affirming practically the
opinion of the Court in every other respect
| The fact that certain votes had distinguishing
| marked figures was not one as to which the
Governor and Council were by statute en-
| powered to correct the returns in the Secre-
| tary's Office by having recourse to the records
| of towns. They are TO open and compare
| them,'' and upon comparison, subject to GER
| tain specified and defined corrections, to de-
| termine who are to be declared elected. And
that is the limit of authority conferred on
| on them. bFa f1fss,sf ha.itzt fr..
We therefore answer the question proposed
| in the negative.
ID e,rl ad JOHN APPLETON, -
EDw. KENT,
| ' al G. WALTON,
I~.5rt r1. aif9.r5v.rr j.. G. DICKERs ON,
VIM. G. BARRows,
aH 2aoe as CHAs. DANFoR. -
RJFuS Il, ia tie