The Portland daily press., 1879-12-13
The Mandanus.
THE RIGHT OF CANDIDATES TO IN.
SPECT RETURNS SUSTAINED.
The Enforcement of the Right Not in the
Power Of the Court.

| In the case of the petition for a mandarin:
against Secretary of State Cove to compel him
to exhibit the election returns Judge Virgin
yesterday gave the following opinion:
Af,dreaC r. G. Smith, petitioner, q. Edacard H
| Go0e.
| NAHUM, Z, Hill, q. Same.
These causes were heard on petitions, afida.
Wits and answers; and, after hearing and argu.
ment, the following order of court was entered
The conclusion is clear that under the sta.
| tutes at present existing, the REALTORS, having
the interest set forth in the petitions, might e-
gally claim reasonable opportunity. to inspect
the official returns of votes from the
| several cities, towns and plantations in
their respective districts. They had
a legal right, under reasonable regu-
lations to see them, after they were offered for
| examination by the Governor and Council.
| Upon the constitutionality in all respects OF
| does not undertake in the present proceeding,
| to pass; but is of the opinion and rules that
under the constitution itself, independently of
| the statutes, the same right OF inspection by
| the REALTORS exists.
The court further holds that the respondent,
as Secretary of State, is the legal custodian of
these official returns, of other records of the
| State, responsible for their safe-keeping and
bound to exhibit them at all proper times to
those whose interest is such as to justify an ex-
| animation by them.
| But while it is not doubted that the right of
| public inspection exists to the extent indicat-
| ed, and may be asserted and enforced against
the respondent, if he without cause refuses to
| exhibit them upon demand therefor properly
| made, it is one of the requirements of the Con-
| stitution that the Governor and Council shall
| examine all these returns within compare
i lively limited period and shall issue summons
to such persons as shall appear to be elected.
| The duty to examine them necessarily includes
| the right of possession of them for such time
| as is required to complete the examination.
| The respondent could not lawfully assert
| against the Governor and Council such right
| of possession as in their Judgment would be my
| consistent with the performance OF the dut.
deyolyed upon them by the Constitution
When, then, the right of public inspection
comes in collision with the necessary possession
| of the returns by the Executive body appoint
| ed to examine them, the respondent cannot
! be- in fault if the former yields and the latter
| prevails.
Upon the question whether at any particular
| time while the Governor and Council are en-
| gagged in examining the returns, or under the
| circumstances then existing, it is reasonable
| for them to be open to the inspection of
| others, or not the court will not under
| take to pass. 1t would be impractcable
| for the court by process directed to the re-
spondent to attempt to control the action
| Of the Governor and Council in this respect
| Nor is it matter over which the court exer-
cises a experimenting authority. While en-
| gagged in examining the returns, the Governor
| and Council act in an executive capacity, upon
| the responsibility of their official station and
| the sanctity of their official oaths. They are
| the final repositories of trust and power from
| the people in regard to it. What limitations
| upon the rights of others the performance of
their own duty necessarily imposes they must
| determine. 1t has long been the established
| law of the state that in any matter intrusted
to them the discretion of the court cannot be
substituted for theirs; that their action, within
| the sphere of their executive duty, in affairs
submitted to their own judgment, cannot be
controlled by judicial process. They are IN
| these respects a coordinate branch of the gov
eminent, over which this court does not pre-
side. Ii mandate were to issue, directing
the respondent to exhibit the returns to the re-
| lator, there must still be a reservation in
| the decree itself, of the right OF the Governor
| and Council to hold them exclusively, when
! ever the fulflment of o constitutional obliga-
| ton on their part imperatively demanded 1T.
| The mandate, therefore, if issued would in
| terms recognize this responsible discretion in
the process.
From the answer in the cause, it appears
that when the relator demanded of the re-
| spondent the production OF the returns they
| were in the possession of the Governor and
| Council, the time for their examination not
| having expired. The law accorded to the re-
| lator the right to see the returns whenever an
opportunity could be afforded him consistent
| ly with the performance OF the duty devolyec
upon the Executive department but it left the
Governor and Council, acting under the obi
cations and responsibilities of their high office
| the final judges of what the discharge of theil
own duty necessarily required, and whether, al
any particular time or under any special cir
cumstances, there was in fact necessity to de
tain them from the relator, whose right to see
them whenever it did not unreasonably inter
fere with the performance Of official duty OF
the part of the Governor and Council, wa
clear.
Petition dismissed. Writ denied.