The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1879-12-12
THE MANDAmUS.
THE HEARING CONCLUDED
AND ADJOURNED.
The Result Probably Known
To-day.
ANOTHER CHAPTER OF THE
CLEARING FRAUD
Announced in the Maine Stan
dard.
CUMBERLAND COUNTY 10
BE DISFRANCHISED

And a Wholesale Throwing Out
of Returns to be Expected.
AUGUSTA. Dec 1.-THE hearing in the
mandamus case was resumed before Judge
Virgin in the Senate chamber to-day. The
attendance of spectators was about the same as
that of the previous day. The court came IN
at o'clock a. M, when Hon. A. P. Gould
opened the case in behalf of the respondent.
Mr.. Gould argued that the Executive and all
the officers of his department, in the perform
ance of their official duties, are independent
of all interference or direction by the Judicial
nv, and that this is a fundamental principle OF
our form of government. The Secretary OF
State in all he has to do concerning the re-
turns of the election of members OF the Legls-
lature, at least until such returns have been
examined by the Governor and Council and
they have ascertained and determined what
persons appear to be elected by the votes re-
turned and made their report thereof, is the
political or confidential agent of the Executive
and the mere organ of Executive will, and
there is no power in the court to direct or con-
troll his conduct in any respect: The returns
are sent to the Secretarys office sealed and
remain so until opened by the Governor and
Council; he has no authority to break the
SEAL 80
The duties required of the Executive, until
they are fully performed, make it indispensa-
BILE that the returns shall be in his possession
or under his constant control. They must pc
in the possession of the Governor and Council,
as this is indispensable to their proper examin-
alton. IT, during the period required for the
examination and the decision as to what they
prove, the Secretary has possession any part
of the time, it is simply as agent OF the Exec
utive, who must be able to control them at all
times without interference by others, or it
would be impossible for him to perform his
duties. A writ of mandamus therefore will not
be issued against the Secretary OF State nnless
like writ would be authorized against his
superiors in office-the Governor and Council.
MIR. Gould then cited authorities to sustain
his position, stating among others that in re-
cent case in Michigan the court held that the
courts of state have no jurisdiction to COM
pei by mandamus the Governor to perform a
duty imposed upon him by law, whether 1t be
ministerial or political, nor has the court au-
thority by mandamus to coerce any independ-
emit tribunal created by the constitution OF the
state. In this state the duty OF examining the
returns and to determine what persons are
elected is clearly judicial, and in such case
I06ro IL no dutuOIlOy III tillo OooiioAy NhAS.A
holds that the court can interfere. (Authorl-
ties in support were given)
The learned counsel contended that there
must be a specific legal right, as well as the
want of specific legal remedy.in order to found
an application for mandamus, and there
must have been direct refusal to do that
which it is the object of the mandamus to en-
force, The respondent does not refuse; he
SIMPLY informed the petitioner that the re-.
turns were not in his possession. The writ OF
mandamus is not writ OF right, but Is lssu
able only at the discretion of the court Parol
evidence is receivable that the writ should not
issue. The petitioner has no legal right to in
spect the returns of the election OF members
of the legislature. tits purely matter OF
discretion. with the Governor and Council
count and adjudication which is being made
by them, and if they do so it is for them alone
to say at what time and place they shall be
exhibited, and the Secretary of State can DO
nothing touching it except as directed by
them.
The purpose for which the petitioner alleges
he desires to see the returns is not lawful
one. The lists returned by the officers OF the
towns and cities of the votes cast for members
of the legislature are not amendable me
constitution declares that upon them, and
them alone, the decision shall be made by the
Governor and Council as to what persons
thereby ''appear to be elected" A suDstltu-
ton of other evidence for this by the Governor
and Council would be clear violation CT the
constitution. and any statute authorizing IL is
ultra vires. If the petitioner has any right to
examine the returns, his application Should pc
to the Governor and Council, in whose custody
they are. He does not assert in his petition
that he has made any such application, and
the Executive must necessarily determine 1or
himself the constitutionality of the statute OF
1877. He cannot decide upon his duty With
out. The right and duty are so held in effect
in Otto, SAL.
Mr. Gould occupied some three hours in
the delivery of his argument, which was
marked by his we'll known ability and power.
Mr.. Baker, on the part of the relator, occu-
pied nearly an hour in his reply, promising his
remarks by stating that he was panied to listen
during the argument of the able and lngen-
ious counsel to his threatening and defiant re-
marks about collision between the Judiciary
and the state authorities. After administering
a rebuke he proceeded to controvert the lead
ing points that had been made by the opposing
counsel The answer that had been made by
the respondent was a farce i'll law He has the
power to show the returns. He argued that
the Secretary of State is the sole custodian of
them and is not the creature, the servant OF
the Governor and Council, as has been stated,
nor is he the organ OF Executive caprice. He
is the sole custodian of the public records and
made SO bv the constitution and the laws. Mr..
Baker agreed with respondents counsel that
the Governor and Council had no more power
now than those who had gone before them,
and he hoped they would not exercise any
more power. He contended that the people
have the right to see the returns, and that the
Secretary of State was obliged to exhibit
them. He reafirmed the main points in his
previous arguments and ended with an elo-
quent peroratlon.
o1o If I o'n n m
when the case was given to Judge Virgin and
the court adjourned. Judge Virgin left for
Portland on the afternoon train. He will rem
der decision tomorrow whether he will issue
a writ of mandamus or not, and telegraph the
fact to the counsel.
The Maine Standard the Democratic organ
of the State Government, announces to-day in
a semi-oficial tone that the returns from Port
land, Lewiston, Saco, Augusta, Hallowell,
Bath and Rockland, for Representatives, all
have some technical defect, and that the Gov
ernor and Council will reject them ALL These
cities elected fifteen Republican Representa-
tives. The most common defect alleged is that
the returns were signed by three aldermen in
stead of four. In Portland the defect was in
using the word Scattering" The law of 1877,
as well as the preceding practice, allowed a
technical defect of this kind to ebe corrected,
but the Governor and Council set the law aside
as unconstitutional and declare that the errors
cannot be amended, and consequently these
cities will be deprived of representation. Bel
fast is also understood to be among the dis
franchised cities ON the ground that DR.. Brooks,
Representative elect, is an examining surgeon
of pensioners and is thus ineligible. The law
expressly prohibits the Governor and Council
taking into account the question Of eligibility
in Senators and Representatives, but it is I'M
derstood that the Governor and Council ad-
Judge this law also to be unconstitutional and
therefore not to be obeyed The town OF Ben
ton, Kennebec County, is included among
those where proof is offered that the returns
were clandestinely changed in order to save a
Democratic Representative in the Clinton dis
trict. The proof is all being prepared for use
in case the Governor and Council order all in
vestigation of the charges made by Mr..
Rounds. On that point no authentic informa-
ton is at hand.
Charles B. Rounds, Esq, who made the
oharra of illegal amendment of returns, was