Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1879-12-11

words he objects to, must be read IN
their full connection, as they stood they
were simply an ornament not used
in a reflective sense, but as matter
of inducement. He was as eager as the op-
posing counsel 80 have the case conducted
with judicial dignity.
Mr.. Gould thought it was a charge showing
corrupt motives, and maintained that the
words were offensive in tone and spirit.
Mr.. Webb agreed to the amendment.
| 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 ex-
ecution of the law. The State of Maine is
properly made the party in whose name the
proceedings are instituted. Next comes the
party relator. He seeks to enforce a pub
| lie right, and therefore need have no special
| interest in the subject matter above his inter-
est as citizen. But the relator has in fact A
special and personal interest in the right
PRAYED for, as a Senator-elect to the incoming
legislature, whose seat and certificate are en-
dangered by the denial of the right, and this
is set out in his petition. This brings the
relator within the strctest rule of law.
The Court has jurisdiction over the respon-
dent as Secretary of State, though an execu-
tive officer. The power to issue mandamus
to a 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 shak-
en- or doubted. The same has been held by
dctum in cases against Secretary of State,
which Mr.. Baker cited. So against State
Trcasurers, and against Cabinet officers, 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 Executive of State. Numerous au-
thorities were cited.
Mr. Baker maintained that the jurisdiction
was properly invoked, and contended that
under the constitution the power Of the Gov
ernor and Council in the issuing of certificates
while strictly limited was formidable in I'M
portance and result. They determine in the
present instance the political complexion of
both branches of the legislature, and the bod
les thus politically born of their action are
the final judge oftheir own election. Thus they
may exercise the power to perpetuate them
| selves.
| Now for the first time in 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 political body representing one
party alone, and we are startled by the
thought and possibility that it may be not
only political but partizan body
1t is under these circumstances and in view
of these possibilities, that we look about us
to see what security the constitution has
given us against the encroachments or usur-
pations ofpower.
Mr.. Baker continued his argument until
o'clock, when the court adjourned.
The court reassembled at o'clock, p. NJ,
when Mr.. Baker resumed his argument:
The constitution carefully insists on an
open vote, openly counted, openly declared,
openly recorded in open town meeting, and
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, invisible to all but those who
may have hidden motive for its conceal
ment.
The inspection of a public record is COM
mon right of the subject.
The moment a return is transmitted to the
Secretary of State it becomes record of the
Stdte, u sedleu TeCOIu I'LL properly OPcucu,
and then an open record. 1t is made by the
Constitution returnable to him, simply be-
cause it is State record by the constitution
and by the the statutes he is made the keeper
of the State record. And what is State re-
cord buta record belonging to the State? And
who is the State? This respondent alone?
The Executive Council? The Governor and
Council?
The day has passed when any individual
can say as did he who was years a King,
"L'etat, c'est NOR
No! record belonging to the State belongs
to every man who is a citizen, and an open
record Of the State is open to every man who
has direct and personal interest in its CEN
tents.
The people have appointed this respondent
| to keep their records for them. Shall they
not have access to their own? Is this crea-
ture above the Creator, the public servant
above the public whom he serves?
| l pay man to watch my house and he re-
| fuses me admission to it. l deposit my mon
cy in bank for safe keeping, and the bank
denies it to me.
| The Court appoints clerk to keep its pa
pers, and the clerk refuses to allow the Judge
to inspect them.
| Again, the Governor and Council for many
important purposes are court under the
constitution. They are the tribunals Of first
instance the legislature is the court of ap-
peals. The people have designated them to
try their cause. These petitioners are the
parties to the case; the returns are the evil
dence on which their case is to be tried. The
Judge fixes time. say for trial from the LIST
to the 18th of December, and then when the
trial is about to begin, the clerk refuses to
show US the papers or the evidence.
| The parties agree to send their case to an
auditor, and put the papers into the hands Of
the auditors clerk, and when the day comes
for hearing, the. clerk refuses our party access
to the papers, because the auditor says his
decision is only prima .faeie after ALL and
may be reversed though he will take care
that the court which is to try the appeal shall
be made up from the parties on the other side,
and then all the papers will be laid before the
tribunal.
The Governor and Council under the con-
stitution as interpreted by the Supreme court
of this State have power to Judge and receive
evidence on two points
|. Whether the signatures are made per-
sonally or by agent
| 2. Whether the signatures are forged.
| On either of these grounds they may reject