Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1879-12-13
THE MAINE MUDDLE.

IuEnS-1A0 (fOVOEnOr anu COUNCIL 20.
ordinate Branch of the Government and
Legal Custodians of tho Same.
] ALBANY, N. T., Dec. 12.-The board of State
canvassers declare all the Republican candi-
dates elected except State engineer and survey
or. Horatio Seymour, Jr., Democrat. he can
didate for that Office, is declared elected.
Upon the question of the right of the petit
TONERS to examine the returns, the court says:
the statutes touching this question, the court
does not undertake In the present proceeding
to pass, but is of the opinion, aud rules, that
under the constitution itself, independently of
the States, the same right of inspection by the
REALTORS exists. The court further holds that
respondent, as secretary of state, is the legal
custodian of these official returns, as 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 examination by them, but
while it is not doubted that the right of pub
lie inspection exists to the extent indicated
may be asserted and enforced against respond
ent, if he, without cause, refuses to exhibit
them upon demand therefor, properly made,
it is one of the requirements of the constitu-
ton that the Governor and council shall ex-
anime all these returns within q comparatively
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. Re-
spondent could no. lawfully assert against the
governor and council such a right of possession
as in their Judgment would be inconsistent
with the performance of the duty devolved
upon them by the constitution. When the
right of public inspection comes in collision
with the necessary possession of the returns by
the executive body appointed to examine them,
tho roanondant cannot he in fanlt If tho fornoo or
yields and the latter prevails.
Upon the question whether at any particu-
lar time while the governor and coun-
Gil are engaged in examining the re.
turns, or under circumstances . then
existing it is reasonable for them to open them
to inspection of others or not, the court will
not undertake to pass. It would be impracti
cable tor 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 a matter over which the court exercises a
experimenting authority. While engaged in
examining returns the governor and council
act in executive capacity upon the RESPONSE
repositories of trust and power
from the people in regard to it. What limita-
tions upon the rights of others the performance
of their own duty necessarily imposes they
must determine. 1t has long been an estab-
Alhucu law OI tuc OGal0 uudt LII 8uy m8GCer en-.
trusted 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
any judicial process. They are in these re.
spects coordinate branch of the government
over which this court does not preside. If q
mandate were to be issued directing the respon-
dent to exhibit the returns to a relator, there
must still be reservation in the decree itself.
If the right of the governor and council to hold
them exclusively whenever fulfllment of the
constitutional obligation on their part is i'm
peratively demanded, the mandate, if issued,
would in terms recognize the responsible dis
erection.
From the answer in the case it appears that
when the relator demanded of respondent pro-
duction of the returns they were in the possess
sion of the Governor and council the time for
their examination not having expired. The
law accords to the REALTORS the right to see tho
returns whenever an opportunity could be af-
forded consistently with the performance of
the duty devolved upon the executive depart
ment, but it left the Governor
and council acting under obi
cations and the responsibilities of their
high Office, and the final judges of what the
discharge of their own duty necessarily re-
quired, and whether at any particular time, or
under special circumstances, there was in fact
a necessity to detain them to the REALTORS,
whose right to see them, wherever it did not
reasonably interfere with the performance of
official duty on the part of the governor and
council, was clear. The petition was dismissed
and writ denied.