The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1879-12-11

able manner for the purpose OF exercising tne
rights, and complying with the fequire4 lSt
nrovided by the laws as hereinbefore set 1ofUh, |
and that rule of court may issue to SAD re-
snondent, commanding him to appear Delore
said Court, at Fryeburg in the County OF OK
ford, on the 9th day of December, 1917, pelng
the seventh day of said December Term, and
show cause, if any he has, why the prayer OF
said petitioner should not be granted, and
writ of mandamus issue as prayed Tor;
(Signed) NAHUM l. Hill
STATE OF MAINE, COUNTY OF hENNEBEc.
On the 2nd day of December, 1879, personal,
" appeared the above named Nahum L. Hlil
and made oath that he has read the foregoing
netition, or heard it read, and knows the CON
tents thereof, and that the same is true OF ms
own knowledge except the mattefS stateu W
be on his information and belief, and that as
to those matters he believes them to be true.
Before me,
JOSEPH BAKER,
Justice of the Peace.
SUPREME JUDICIAL CoURT,-OXFoRD COUNTY
December Term, 1879.
Ordered, That notice of this petition be given
to Edward FL. Cove of Augusta, in the County
of Kennebec, by giving him in hand a true and
attested copy of this petition and order OF no
tce two days before the ninth day. of Decem-
ber 1879, that he may appear at the Supreme
Judicial Court, now in session at Fryeburg III
and for the County of Oxford, and show cause,
if any he has, why the prayer of said petition
mus issue as prayed for.
VIM. WRIT VIRGIN,
Justice Sup. Jud. Court.
The answer of the respondent to the petition
was also read by Mr.. Baker, which in sub
stance is as follows:
THE REPLY.
The Respondent above named respectfully
protests against any further proceedings by
this Honorable Court upon the foregoing pc
tition, because, as he says, IN respect TO all
the matters set forth therein, SO far as he has
any connection Herewith by the Constitution
and Laws of this State, he is merely the pot-
ical and confidential agent and servant OF the
Governor and Council ofthe State, and organ OF
executive will, and has no volition or power
to act Independently thereof; and he there
fore respectfully submits that he ought not to
be held to answer said petition.
Without waving his protest aforesaid, the
Respondent for answer says:
THAT he has no knowledge, information,
or belief whether the Petitioner was q candi-
date and fairly elected to the Senate of the
State, or whether the same appears by the Of
fetal returns from the several cities and towns
in the district and county of Hancock as he
alleges in said petition.
2oTo SO much of said petition as alleges
the belief of the Petitioner that the Governor
and Council are intending and attempting to
reject some of the returns and deprive him OF
his Office by illegal and improper means, the
RESPONDENT takes CAC6pllOH dS IupSItlHCnp
and scandalous, and prays that tho same may
| be stricken from the petition.
3-That he admits that on the 18th day OF
| November, 1872 the Committee on the part
| of the Council appointed to receive the returns
on file in the office of the Secretary of State,
| and proceed to open and tabuate the same as
| soon as convenient in accordance with the
| vote passed by the Council, October 30, 1879,
as follows:
| Here follow the various votes in Council
4-That the Respondent has no knowledge,
| information or belief that said Committee has
| at any time made Report to the Governor
and Council submitting said returns to them
and he says that the only report of which he
has knowledge is the one before set forth, in
which the tabulation of said returns by the
Committe only was submitted; and he denies
that by virtue of said report, or in any other
method said returns have been spread upon
the records of the Governor and Council, and
thereby became public property and open to
the Petitioner, otherwise than by the order
| the exercise of their discretion, ON application
| duly made to them.
5sThat, he admits that on the second day of
| December 1879, the Petitioner made a request
| to him in writing, as follows, viz;
| To the Honorable Secretary Of State of Maine:
The undersigned respectfully represents
| that he was a candidate for the Senate of
Maine at the last annual September election
from the district and county of Hancock
That as such he has an interest in the official
returns of votes cast in the several cities,
towns and plantations in said district, and for
warded to the Office of the Secretary of State,
| and fearing that there may be defects and
| informalities in the same that can be correct
| ed according to the laws Of the State, requests
| that he may have an opportunity, immedi-
| ately in the Office of the Secretary of State,
| or in his presence, to examine said returns by
| himself or counsel, for the purpose of correct
! ing any defects or informalites that may
| be found therein-as is his right under the
| laws of this State-and for all other purposes
| contemplated by the Constitution.
! Augusta, Maine, Dec. 1, 1879.
| But he denies that he was at that time, is
now or ever since the said second day of
! December has been the legal custodian of
| said official returns; and he further denies
| that he refused to allow such an examination
| as was requested by the Petitioner, or any
examination, and that he still persists in so
| refusing, or that he has deprived the Petition
| Ell of any supposed legal right which he may
| have to see and examine said returns; and he
| saws that upon the making of said application
| to him. ne informed the Petitioner that the
| returns set forth in his request were not in
| the Respondents possession, and that he had
| no authority or control over them, and that if
| the Petitioner desired to see them he must
make his application to the Governor and
Council in whose possession they were.
6-And the Respondent further answering
saws, that on the thirty first day of October
1879, he delivered the returns in the petition
mentioned, to the Committee of the Executive
Council, in accordance with the requirements
of the vote of the Council herein before set
forth. dated October 80, 1879; that said returns
were then sealed, the seals thereof never having
been broken since they were received at the
office of the Secretary of State; and that since
he delivered said returns to said Committee,
no one of them has ever been in the custody,
| or possession, under the authority or control
of the Respondent and that he has never had
| it in his power to exhibit said returns or any
part of them to the Petitioner or any other
person.
Mr., Baker opened the case in behalf of the
relator by referring to what the petition asks
and reciting the facts that made it necessary.
He contended that the petitioner should have
the right under the Constitution and the laws
to see the returns He spoke of the jurisdic-
ton of the court in relation to the matter, The
petitioner asked for nothing but what was for
the furtherance of justice and the execution Of
the law. The court has jurisdiction over the
RESPONDENT as Secretary of State, though an
executive officer. The power to issue man
damus to Secretary of State was settled by
Chief Justice Marshall. The same power has
been upheld by numerous and learned courts
since, and is now too firmly established to be
shaken or doubted The same has been held
bv dict11n in cases against Secretary of State,
which Mr.. Baker cited. So against State
Treasures and against Cabinet ofhcers. by
an unbroken line of decisions since Kendall VS..
the United States the power has been upheld
by the Supreme Court of the United States.
So even against the Governor and Chief Exc
cutive of State. Numerous authorities were
cited)
Mr. Baker maintained that the jurisdiction
was properly invoked, and contended that
under the Constitutionsthe power of the Cover
nor and Council in the issuing of certificates
while stictly limited, was formidable in impor-
lance and result. They determine in the pres
ent instance the political complexion of both
branches of tho Legislature, and the bodies
thus politically born of their action are the
final Judges of their own election. Thus they
may exercise the power to perpetuate them
selves. Now for the first time i'll the history OF
our state we are brought face to face with the
fact that the canvaSsing board which may in
this way shape the whole government of the
state is a official body representing one party
alone, and we are startled by the thought and
possibility that it may be not only political,
but a partisan body.
The Constitution carefully insists on an open
vote, openly counted, openly declared, openly
recorded in open town meeting and q return
thereof openly attested and openly sealed. 1t
was never contemplated that the same return
when forwarded to the office of the Secretary
of State and there opened by the Governor and
Council, should become a secret paper lnyisi-
BILE to all but those who may have a hidden
motive for its concealment The inspec-
ton of public record is common right