Daily Kennebec journal., 1879-11-05
From the Portland Advertiser.
COUNTING THE VOTES.
The Duties of the Governor and
Council.

To the Editor Of the 1drertiser:
In view of the statement that the Governor
and Council propose, upon various pretexts,
to take such official action upon the returns
for Senators and members of the House of
Representatives as will place the organiza-
ton of both branches of the legislature in the
hands of the grcenback- democratic coalition,
Won request me to report the constitutional
and legal provisions under which they must
act, and the construction which has been Civ
en- to those provisions by the supreme court
of the State.
Section ). part i, of article w. of the con
stitution, after directing that the town meet
ings for the choice of Representatives shall
be warned in due course of law. provides that
the selcctmen shall receive the votes of all
the qualified electors present; sort, count ana
declare them in open town meeting ana IN the
presence of the town clerk, who shall form
list of the persons voted for, with the number
of votes for each person against his name.
shall make fair record thereof in the pres
cncc of the selectmen and in open townmeet-
ing. And fair copies Of the lists of
votes shall be attested by the selectmen and
town clerks of towns and the assessors OF
plantations, and sealed up in open town and
plantation meeting and the town and plan
tation clerks respectively shall cause the
same to be delivered into the secretary's Office
! Tat Augusta thirty days at least before the
first Wednesday of January annually. And
the Governor and Council shall examine the
returned copies of such lists. And
frenfy days before the sad first day of Ian
uayv annually shall issue a summons 10
such persons as shall appear 10 be efecfed
by a piuyaiity of all the r0fes returned, to
attend ard take their seats. But all such
| lists shall be laid before the House of Repre-
sentatives on the first "Wednesday of January
annually and they shall finally determine
who are elected"
In section of the second part Of the same
article, the same provision in regard to the
duty of the Governor and Council is made
applicable to Senators.
Section 32 of chapter of the Revised
Statutes provides that the whole number of
separate ballots given shall be counted and
| distinctly stated, recorded, and returned.
and rs amended by chapter 2l3. acts of 1877.
after directing the counting of votes for in
eligible persons declares that the person
having the highest number of votes shall be
declared to be elected, ''and the Governor
shall issue certificate thereof"
In 1878 this section was amended by the
addition of proviso that it should not be
construed to give the Governor and Council
anv authority to determine questions of
eligibility in cases of Senators and Repre-
sentatives.
These are the only constitutional or statute
provisions defining the powers and duties of
the Governor and Council in regard to the
returns after they have been delivered into
the office of the Secretary of State. They
are not ambiguous or of doubtful construc-
ton nor do they confer any general or unde-
4 rI.,a at.t,, tai, ,t,1
minute regulations respecting the manner in
which Senators and Representatives shall be
elected. but whether these regulations are or
are not observed in an election. whether the
votes deposited and counted did or did not
conform to the statute requirement whether
the check lists were tampered with, or wheth-
er voters were bribcd, are questions into
which the Governor and Council have no
thority to inquire. Their only duty is to ex-
anime the returned copies of the lists Of votes
and to Issue a summons to such persons as
appear TO be elected by a plurality Of the
rofes returned
They are not general judges of elections
and have no authority to hear any evidence of
irregularity or ilegality in an election. except
what may appear in the returns themselves.
They can act only upon the returns, signed
and returned by the proper officers. They
act as a canvassing board and can only know
what the returns indicate. In their invcsti
cations they are limited to the evidence de-
rivable from the returns transmitted to them
by the several clerks of the cities, towns and
plantations of the State.
That these views are correct and have been
sustained by uniform series of decisions or
opinions by the Supreme Court of the State,
may be seen by an examination of the Maine
Reports, vol. 25. page 567, vol. 81, page COZ,
vol. GA, pages 5Ss and $50, and vol Gs, page
5SS.
Some of these opinions were upon ques-
tions relating exclusively to the election of
county officers, but at the time they were Civ
en- the same provisions applied to county of
ficers and to members of the Legislature,
and an examination of the opinions will show
that the court considered both cases as gov.
erned by the same rule.
Within comparatively recent period the
power of the Governor and Council to hear
evidence outside the returns has been given
by express statute in the case of county Off
GERS, but no such enlargement has taken
place in cases of members of the Legislature.
The long and uniform course of decision still
stands as their rule of action.
So far as informalities in the returns are
concerned, if they do not appear to be signed
~ tht PopSl ohttis, iiust
ed. So if the names signed be forgeries, the
fact may be shown. Vol. 64 page 59l. So
if they are not in fact signed by the proper
officers. Vol. 6S, page 5S7. There ought
not, however, to be any trouble in the form
of the returns, as it is made the duty of Sec
retary of State to furnish blanks for the re-
turns and if the town officers fill out the
blanks they must be correct.
The fact that the Governor and Council
cannot go behind the returns and receive evil
dence of Irregularities or illegalities in the
election, is not important, since the returns
are laid before the Senate and House, and
each house, in the exercise of its power to
determine who are elected, can correct anv
errors if the returns do not give the true
result of the election.
1t is said that the action of the Governor
and Council in hearing evidence and with
holding a certificate in the Madigan and Bur
leigh contest is to be made precedent, and
that certificates are to be denied to several
members elect Whatever force there might
be in such precedent is entirely abrogatcd
by the act of 1873, quoted above, which was
passed after that action of the Governor and
Council and evidently for the purpose of pre-
venting its repetition G. C. H.