Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1879-12-13
MAINE NEWS BY TELEGRAPH.
THE MANDAMUS CASE.
Full Text Of Judge Virgins Opinion.

PORTLAND, December ~. The following
is the full text of Judge Virgins opinion in
the petition for mandamus against Secretary
of State Cove, to compel him to exhibit the
election returns.
Andrew r. G. Smith, petitioner, VS..
Edward II. Cove; Nahum T. Hill VS..
same. These causes were heard on petit
tons, afidavits and answers, and after
the hearing and argument the following order
of court was entered:
The conclusion is clear that under the
statutes at present existing, the REALTORS, hav-
ing the interest set forth in the petitions,
might legally claim reasonable opportuni-
ty to inspect the official returns af votes from
the several cities, towns and plantations in
their respective districts. They had right,
under reasonable regulations, to see them,
after they were offered for examination by
the Governor and Council, upon the consti-
nationality, in all respects, of the statutes
touching this question.
The court does not undertake, in the pres
ent proceeding to pass, but is Of the Opin-
ion and rules that under the constitution it.
self, independently of the statutes, the same
right of inspection by the REALTORS exist.
The court further holds that the respondent,
as Secretary of State, is the legal custodian
of these official returns, as of other records
of the State, responsible for their safe keep
ing, and bound to exhibit them at all proper
.; 70 thnu into IL IN
justify an examination by them. But while
it is not doubted that the right of public in
spection exists to the extent indicated, and
may be asserted and enforced against the res
pendent, if he without cause refuses to exhibit
them upon demand therefor properly made
1t is one of the requirements of the constitu-
ton that the Governor and Council shall ex-
anime all these returns within q comparative
ly limited period, and shall issue summons to
such persons as shall appear to be elected.
cludcs the right of possession of them for
such time as is required to complete the ex-
animation. The respondent could not law
fully assert against the Governor and Council
such right of possession as in their judg-
ment would be inconsistent with the perform
ance of the duty devolved upon them by the
constitution, when then the right of public
inspection comes in collision with the neces-
sary possession of the returns by the execu-
tive body appointed to examine them, the re-
spondent 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 engaged in ex-
aiming the returns, or under the circum-
to be open to the inspection of others or not,
the court will not undertake to pass. 1t
would be impracticable for the court, by
process directed to the respondent, to attempt
to control the action of the Governor and
Council in this respect, nor is it matter
over which the court exercises a superintend-
| ing authority.
While engaged in examining the returns
the Governor and Council act in an executive
capacity, upon the responsibility of their Off
cial 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 performances of their own duty necessa-
rily imposes, they must determine. 1t has
| long been the established law of the State,
that in any matter intrusted to them, the dis
erection 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 respect,
a coordinate branch of the government, ovel
which this court does not preside.
If = mandate were TO issue directing the
respondent to exhibit the returns to the re
lator, there must still be q reservation in thu