The Portland daily press., 1874-04-09
HEARING I'm THE BIDDEFORD
CASE.
Judge Virgin Reserves hls Decision.

Tripp, claiming to be City Clerk of Biddeford
from taking possession of papers aud recordsilr
the Biddeford City Clerk office, was held befor'
Judge Virgin yesterday morning. in the Su
preme Court ROOM Messrs. Howard & Cleave
appeared for the petitioners, and Hon. j. H.
Drummond and Judge Tapley for the remon
strants. A large number of Biddeford people
were present, and many interested spectators
belonging in this city. The hearing began al
$50.
Judge Tapley opened the case, giving an ac-
count of the election and of the subsequent
proceedings of the City Council
Subsequently the Board of Aldermen held
several meetings for the appointment of police
officers, etc. On the 25th of March a notifica,
ton was issued for joint convention for the
election of subordinate officers. Alderman
Hussey filed his protest against this. Dsre.
garding it a portion of the Boards met in con.
vention, together with the three persons whom
the Mayor had declared elected. Mr.. Trip
was elected City Clerk. Mr. Tripp called upon
Mr.. Berry the City Clerk, for the books of the
City Clerk. Mr.. Berry declined delivering
them to any other than regularly elected
mand On the 26th of March, the Mayor with
assistants, enterered the Clerks office, cut open
the safe, and took possession of the books. Up
on this statement of the case the injunction was
granted, and Mr.. Berry again took possession of
the books. On the 9th of April the City Coun.
Gil met and regularly elected City Clerk.
The counsel claimed that the nine members
of the council, with the three citizens associa-
ted with them were not competent to elect a
City Clerk. Section q of the city charter was
quoted, which states that that board shall be
Common Council has so judged, aud certificates
of election have been issued. The boards are
final tribunals in these cases, and from their
decision there is no appeal. They are constitute
ed sole judges of the law and the facts by the
city charter Mr.. Berry was elected and duly
qualified as clerk in 1873, and held over until a
successor was legally elected. Counsel here put
in the city records and charter as evidence.
Objection was made to the latter portion of the
records, counsel claiming that Geo. b. Goodwin
was not clerk of the Common Council of 1874,
there being no provision for his holding over.
The records were however admitted, subject to
objection The records of the lively scene which
Gil were read, as also were the records of subse-
quent meetings.
Mr.. Tapley then inquired if counsel for May
or Warren purposed to deny the use of force in
obtaining possession of the records
Judge Howard said Mr.. Trpp took
possession of the records in the quietest man
ner possible,
He conteuded that under the circumstances
narrated, the organization of the city govern
ment on the 10th of March, by the then action
of the Council, was legal, and the union of the
Aldermen with other persons on the 18th of
March, failed to give Tripp the right to] take
possession of the City Clerks Office. BY chap
ter 13, sec. q, of the city charter. "each board
shall keep record, and jndge of the election of
their own members We hold, said he, that
the Council have judged of the election of their
members by the appointment of a committee
on credentials, and the acceptance of the report
of the same, in meeting in which all the
members participated, and to which all the
members surrendered their credentials At the
foot of the eleventh page it says, ''elected mem
bers of the Council should have their certificates
awarded them in twenty four hours after their
election and we hold that they are the tribu
nal that in all instances may determine who
are their members They are the judges from
whom there is no appeal. 1t will appear by
the records the Board of Aldermen have taken
steps to see if a gentleman who has taken part
in their body is legally member.
Judge Howard then began his argument for
a dissolution of the injunction. He said there
was no doubt of the legality of the first meet
ing of the council. The whole question turns
upon the election in Ward 8. 1t is the duty of
ward officers to receive, sort, count, declare and
register votes in open ward meeting. This
duty was discharged in ward and the Demo-
cratic candidates declared elected. The proper
ly filled out blank was put in in evidence. This
blank was sent to the City Clerk, by him en-
dorsed, and passed upon by the Board of AID
Subsequently, a N
ed certificate, giving the election to the ReDub-
lican candidates, was issued. This certificate
was dated two DAYS after, and deposited with
the City Clerk, the reason given being that the
former return was defective. Under the orig
inal certificate the Democratic candidates were
ordered to be sworn in by the Mayor. AT this
point the counsel on the other side stated that
they did not base their case on the amended
certificate, but on the action of the Council
Judge Howard claimed that the members of
the Common Council did not form trlbE-
nal competent to judge of their own elec-
ton until they had been qualified to act as
Councilmen. Previous to organization they
were mere members elected for Council, and
not Council itself. Before going into joint
convention they. having no authority, attempt
ed to purge the Council. Their records were
kept by a rnau not legally qualified. They were
obliged to resort to irregular proceedings in or
der to organize. Baffled in joint convention
they seeded. Without the presence of the
With the presence of the pseudo-members the
body was an illegal one.
The introduction of the original return from
ward 3 was objected to. but was allowed, sub
ject to the objection The records OF the first
meeting of the City Council was also put in
Election certificates from other wards were put
in to show that the original ward return was
made up in the same manner on a similar
blank.
The opening arguments were here brought to
a close, and testimony for the petitioners open
ed
Oliver Fl. McIntire, warden of ward 8. was
the first witness He testified to signing the
original return on the day of election, nd de-
liverng the return to the City Clerk.
Samuel G. Hooper, Clerk of ward 3. testified
to making out and signing the original return.
He gave no certificate of election to any per-
son within twenJy-four hours. On cross exam
ination he testified to delivering certificates of
election to the Republican candidates for Coun
cilmen two days after the election. He also
testified to the record in the ward books. He
delivered the amended record two days after
the delivery of the first one. On direct exam.
nation he testified that the certificates dated
by him the 10th of March were written in Mr..
Lunt's Office on the 18th of March, The amend
ed return was made on the l1th. in Mr. Lunts
office Witness didn't know who wrote it. 1t
was read to him by Mr.. Lunt, and he signed it.
This witness was very wary in his answers, ap-
parently fearing to fall into some cunningly
contrived trap. 1t was with difficulty that he
could be brought to acknowledge his personal
identity.
George Emery was called and asked if he
was one of the committee to count votes in
ward 3. At this point Judge Virgin said he
should not pass upon the legality of that elec-
tion and did not consider it proper subject mat
ter The witness was then withdrawn.
Edwin Stone testified to being chosen tempo
rary Clerk of the Common Council, to the re
cord of the administration of the oath to the
Democratic Councilmen from ward g. and to
the certificates of election presented. Also to
the records of the meetings held by the Demo-
cratic members eff the Council. The records
show the election of Mr.. Trip as City Clerk.
of presiding officer, etc. On cross examina-
ton witness testified that the election of pre-.
siding officer was made after the withdrawal OF
the Republican members.
George Berry testified to being Clerk of the
Common Council.
James f. Tarr, one of the Republican Coun
cilmen from ward g. testified to being at the
meeting of the Common Council on tne 10th
He was not sworn in by the Mayor, but acted
as Councilman. The Democratic Counclmer
from ward 3 were not allowed to act. Did no
know that they presented credentials. His Ger
tificate of election was given him by the cerl
of ward 3.
Mr.. Charles Cole Democratic Councilman
from ward 3, testified to being sworn by tn,
Mayor, to claiming the right to vote for chair
man, and to the refusal of that right. Messrs
Garside and Denhett, Democratic Counclmer
from Ward 8, gave testimony substantially th'
same.
Aftor Aha Court caypa in in the afternoon