Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1876-01-06
Opinion 8. j. Court.
Answer Of Court to the Questions Proposed By
Governor and Council as to Their Power in
Counting Votes.

NouhtAu8 votcu.
On the I'd of Dec. the Governor and
Council proposed the following questions
to the Supreme Court
First.-In the discharge of their duties as
canyassers of lists of votes returned to the Of
flee OF Secretary of State as required by law,
can the governor and council include in the
number of votes for William III. Smith, for ex-
ample, such other votes for the same office as
are for W. ii. SMITH
Second.-Can the governor and council in
ciude In the number of votes for William ii.
Smith, for example, such other votes for the
same office as are for William Smith,
Thrd.-When the Seectmen and Clerk of
any town shall make q return of lists of votes
given in 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 a certificate which satisfies
the governor and council that William ii.
Smith and w. Ii. Smith are and the same
person, can the governor and council count the
votes for W. ii. Smith as for William III.
SMITH
Fourth.-Can the GOVERNOR and council re-
ceive evidence showing that the return of votes
cast in any town for senator or representative
TO the legislature. does not agree with the re-
cord made by the clerk Of such town, and al
low the return to be SO amended
fith.-Does person elected to fill n vacan-
cy 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 a
full term OF five yearsy
Opinion OF Court.
The Court through Chief Justice Apple
ton, all the Justices concurring, has given
the following answers
BANGOR, Dec. 6, 1915.
The undersigned, Justices of the Supreme
Judicial Court, have the honor to submit the
inc hn ts,sa-
posed:
The Governor and Council in comparing and
examining the returns Of votes, and in declar-
ing who are elected, act as a canyassing board.
They only know what the returns indicate. In
their Investigations they are limited to the evil
dence deriyable from the returns transmitted
TO them by the several clerks of the cities,
towns or plantations of the state, except when
their powers have been enlarged by stat
ute. Ii the returns show that ballots were
cast for John Smith and for J. Smith for the
same office, it cannot be asccrtained from any
evidence before the canvassing board that the
initial letter of the Christian name j.. was in
| tended for John rather than for Joseph or
james. or any other Christian name beginning
with such letter. which different persons bear
ing that common surname may have.
| SO, If John smith and James Smith were can
didates for the same Office no inspection of the
| returns, however accurate, would afford any
| clue TO enable the Governor and Council to de
| termine whether the vote for J. Smith should
| be counted for the one or the other OF the con-
| tcnding candidates, or for some other Smith
| whose Christian name began with j. The fact
of different ballots would indicate that they
| were different individuals for whom such bal
| lots We're intended.
, Where there are abreviations of the Chris
| iian name in common and ordinary Use, ~
| VIM. for William, ii Is otherwise, for these
! abreviaiion> have "A recognized and well under
| stood meaning. so. when the name j. mis-
| spelled, but recognizable by the sound, as that
| OF = candidate. and the mis-speing cannot lead
| TO any misunderstanding, the recognition
/ of identity from the record will Justify the
| counting of the name ms-speled for the can
| didate for whom 1t was obviously intended.
80 far a, this question relate, to the returns
of votes for senators and Representatives, it i
| comparatively I'm important, as the Senate and
/ House Of Representatives are the constitution
| al judges Of the election OF the members of
| the members Of their respective bodies, and
| have iull power 10 receive and act upon the
| evidence necessary to enable them justly to de-
! termine the rights Of the different claimants
| for the same seat. In the case Of County oil
| ccr- the Will of the voters NAV sometimes be
| defeated by their negligence in not designating
| with precision the names of their candidates.
| In respect To those officers the power of the
| Governor and Council have been Increased to a
| limited extent by X. :. c. : J. Whether
| further enlargement of their powers may not
! be eNpedcnt, |, matter for the consideration
| of the legislature.
To the first question proposed We answer in
| the negative.
>. The names OF William H. smith and
| William smith are different. The ballot, res
| pectivcy bearing those names were cast by diff
! ierent persons and these are returned as the
names oi different candidates. Evidence from
| without the returns would be necessary To
show that they were int nded for the same per-
sons. Rut such evidence i not legally adj
| missabie.
The second question we answer in the mega
| tive.
8 BY the tenth amendment 10 the con-
stiIuion. It Is provided that flair copie, OF he
| list of votes shall be attcstcd by the Selectmen
| and town Clerks OF towns and the assessors OF
| plantations. and sealed up in open town and
! plantation meetings; and the town and planta-
| ton Clerks respectively shall cause the same
10 be delivered into the Secretarys office thirty
days at least be fore the first Wedne .,ay of Jam
| ruary annually. And the Governor and coun-
| ell shall examine the returned copies OF such
| lists, etc. etc., and twenty days before the said
first Wednesday Of January annually, shall is
sue summons TO such persons as shall appear
TO be elected by plurality OF all the votes re-
| turned. TO attend and take their seats" etc.
BY X. :, c. 4. 30. the Town Clerk is requir-
| ed to transmit 10 the Secretary of State within
prescribed time, 1.-THE returns OF votes given
| in his town.
When the Selectmen and Town Clerks of
| towns and the assessors Of plantations attest
| fair copies of the lists of votes" and seal up
| the same in open town and plantation meet
4 delivered
| to the Secretary's Office as required by the
| Constitution and Statutes. their duty i, at an
| end. They are not certifying officers as TO the
identity Of candidates when that identity is not
| apparent from the retutns transmitted, for the
same reason that the constitution has not made
| them such.
We answer the third question in the mega
| tive.
4. By X. s., c. IS. 8. the power Of the Gov
| ernor and Council is somewhat enlarged in re-
nf ttttty III.
| ers, and the provisions of this act have been
! made applicable to other County officers. But
this act gives no power TO correct the errors
which may exist in the returng of Votes of Sem
| ators. III Is for the Senate TO that .uch
| errors a are supposed TO exist in them by lhi,
| inquiry are duly corrected.
The fourth question we answer in the mega
| tive.
| .. BY X. 5. chap. !. sec. 9 it is enacted that
in each county and in each registry district
established by law, there shall be chosen BY
| ballot by such persons as are qualified to vote
| for representatives at town meetings, on the
second Monday OF September, in the year one
| thousand eight hundred and seventy-two, and
| erery nee years thence following, some per.o
, to 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 he
chosen and qualified"
| by sec, D, vacancies occurring in said office
| by death, resignation, or otherwise, shall be
| nleu by election at the September
election next after their occurrence; and in
the meantime the governor, with the advice
aud consent OF the council may fill said yacan-
cies by appointment, and the person so ap-
pointed shall hold his office until the first day
OfJanuary thereafter"
1t is apparent that the term of office of the
Register OF Deeds was five years; that the
elections were to be made every five wears
from specified date, and that they were to be
simultaneous throughout the State So they
| ever have been. 1t follows that a vacancy to
be filled by election could only be for the re-
mainder of the term, as otherwise the election
could not be in each county and in each regis
try district established by law. go every I'VE
years thence following, that is ''from the sec
ond Monday of September, 1s72- ANY other
construction permits the choice of the register
to be in any one of the intervening five Years.
and not in the five years thence following i'm
consecutive series of that period.
That this is the true construction of the
statute is made apparent by recurrence TO pre-
ceeding legislation. By St. 1921, chap. % sec.
l. the register ofdeeds is to "hold his office for
the term Of five years, and until some other
person shall be chosen and qualified 10 act in
bis place." In case of vacancy by sec. the
person chosen to fill such vacancy shall be
I nf a.s 4.