Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1876-01-03
OPINION 81 J. COURT
Answer of Court to Questions Proposed
by Governor and Council as to their
Power in Counting Votes.

W llllam Ii. Smith, for example, such other votes
for tn e same Office as are for w. II. Smith.
Seeond.-Can the governor and council inclade
in the number of votes for William II. Smith, for
example, such other votes for the same office as
are for William Smith
Third.-When the selectmen and clerk of any
town shall make return Of lists of votes given in
such town, showing that William II. Smith and
w. II. Smith received votes for the same office,
and accompany and seal up with such return q
certificate which satisfies the governor and coun-
Gil that William Ii. Smith and w. Ii. Smith are
one and the same person, can the governor and
council count the votes for w. II. Smith as for
William II. Smith
Fourth.-Can the governor and council receive
evidence showing that the return of votes cast
in any town for senator or representative to the
legislature, does not agree with the record made
by the clerk Of such town, and allow the return
to be so amended?
Fifth.-Does a person elected to fill vacancy in
the office Of register of deeds, hold the position
only for the remainder of the term for which the
prior register was chosen or for full term of five
years
OpiOniOn OF Court.
The Court through Chief Justice Appleton, all
the Justices concuriing, has given the following
answers -
Bangor, Dec. G, 1876.
The undersigned, Justices of the Supreme Judi
cial Court, have the honor to submit the following
answers TO the nterrogatories proposed:
The Governor and Council in comparing and
examining the returns OF votes, and IN declaring
who are elected, act as canvassjng board. They
only know what the returns indicate. In their in
vestigations they are limited to the evidence derva
BILE from the returns transmitted to them by the
several clerks of the cities towns plantations Of
the State, except when their powers have been
enlarged by statute. If the returns show that
ballots cast for John Smith and for j. Smith for
the same office, it cannot be ascertaned from any
evidence before the canvassng board that the ini-
tial letter of the Christian name j., was intended
for John rather than for Joseph or James, or any
other Christian name beginning with such letter,
which different persons bearing that common sur
name may have.
So if John Smith and James Smith were candi-
dates for the same office, no inspection of the re-
turns, however accurate, would aford any clue to
enable the Governor and Council to determine
whether the vote for j. Smith should be counted for
the one the other of the contending candidates,
or for some other Smith whose Christian name be-
gan with j. The fact Of different ballots would
indicate that they were different individuals for
whom such ballots were intended.
Where there are Authorizations of the Christian
name in common and ordinary use, as VIM. for
William, it is otherwise, for these authorizations
have q recognized and well understood meaning.
So, when the name is mis-spelt, but recognizable
by the sound, as that Of candidate, and the mis-
spelling cannot lead to any misunderstanding, the
recognition of identity from the record will JUS
tify the counting Of the name mis-spelt for the
candidate for whom it was obviously intended.
So for this question relates to the returns of
votes for Senators and Representatives, it is COM
parativey unimportant, the Senate and House
of Representatives are the constitutional judges Of
the election of the members of their respective
bodies, and have full power to receive and act
upon the evidence necessary to enable them justly
to determine the rights of the different claimants
for the same seat. In the case of County officers
the will of the voters may sometimes be defeated
by their negligence in not designating with suf-
fCent precision the names OF their candidates.
In respect to those officers the power of the Gov
ernor and Council have been increased to limited
extent by II. s., c. IS 5. Whether further
largement of their powers may not be expedient,
is matter for the consideration of the legislature.
To the first question proposed we answer in the
negative
9. The names of William ii. Smith and William
Smith are different. The ballots respectively bear
ing those names cast by different persons and
they are returned as the names OF different candi
dates. Evidence from without the returns would
be necessary to show that they were intended for
the same persons. But such evidence is not legal
ly admissible.
The second question We answer in the negative.
8. BY the tenth amendment to the constitution,
it is provided that fa.r copies of the lists Of votes
shall be attested by the Selectmen and town
Clerks OF towns and the assessors of plantations,
and sealed up in open town and plantation meet
ings; and the town and plantation Clerks respect
lively shall cause the same to be delivered into the
Secretary's office thirty days at least before the
first Wednesday Of January annually. And the
Governor and Council shall examine the returned
copies of such lists, etc. etc., and twenty days be-
fore the said first Wednesday of January annually,
shall issue summons to such persons as shall
appear to be elected by plurality of all the votes
returned to attend and take their seats" etc.
BY r. S., c. 4, 33, the Town Clerk is required
to transmit to the Secretary of State, within pre-
scribed time, 1.-THE returns of votes given in his
town."
When the Selectmen and Town Clerks of towns
and the of plantations attest "fair copies
of the list Of votes, and seal up the same sin open
town and plantation meetings." and cause the
same to be delivered into the Secretary's office as
required by the Constitution and Statutes, their
duty is at end. They not certifying officers
as to the identity Of candidates when that identity
is not apparent from The returns transmitted for
the same reason that the cor stuti0n has not made
them such.
We answer the third question IN the negative.
4. BY Il. s., C. rs, 5, the power of the Gov
ernor and Council is somewhat enlarged in rela-
ton to the election of County Commissioners, and
the provisions of this act have been made appli-
cable to other County officers. But this act gives
no power to correct the errors which may exist in
the returns Of votes o. Senators. 1t is for the
Senate to see that such errors as are supposed to
exist in them by this inquiry are duly corrected.
The fourth question We answer in the negative.
5. By r. S., I, ?, it is enacted that Gin each
county and in each registry district established by
law, there shall be chosen by ballot by such per-
sons as are qualified to vote for representatives at
town meetings, on the second Monday of Septem-
Der, in the year one thousand eight hundred and
seventy two and erery fire years thence following,
some persons &c be Register Of Deeds"
BY sec the person so chosen is to "hold for the
term of five years from the first day of January
thereafter and until another shall be chosen and
qualified"
BY sec 3 "vacanciss occurring in said office by
death, resignation, or otherwise, shall be filled by
election..'.at the September election next after
their occurrence; and in the meantime the govern
or, with the advce and consent Of the council,
may fill said vacancies by appointment, and the
person SO appointed shall hold his office until the
first day of January thereafter"
1t is apparent that the term of Office Of the Reg
lister of Deeds was five years; that the elections
were to be made every five years from a specified
date and that they were to be simultaneou
throughout the State. So they ever have been.
| 1t follows that vacancy to be filled by election
could only be for the remainder of the term, as
otherwise the election could not be in each county
and in each registry district established by law.
*.every FIVE years thence following, that is "from
| the second Monday of September, 1872" Any
other construction permits the choice Of the reg
| lister to be in any Of the intervening five
years. and not in the five years thence following
| in consecutive series of that period.
| That this is the true construction OF the statute
il made apparent by recurrence to preceding legis-