The Portland daily press., 1879-12-25
Garcelon's Defense.
A Review of the Governors Law end
Logic.

and thus admitting the acts charged, claim as
matter of law, that they constitute no crime
against the people.
The argument upon the demurrer appeared
in the morning papers of the 23rd inst. and it
is in brief that all the acts charged in the in
dictment have been performed in strict COM
pliance with, and not in violation of the laws
of the State.
Let us examine the citations made by Mr..
Garcelon and apply them to the facts
l.. He quotes act 4, part I, sec. of the Con-
stitution as follows:
'"The statutes regulate the mode of the calling
of meetings, but the Constitution prescribes
the qualifications of Representatives and de-
clareS that the Selectmen OF towns or NJ unlel-
pal officers of cities shall preside impartally at
such meetings, receive the votes OF all the
qualified electors present, sort, count and de-
clare them in open t0eCn meeting and III the
presence Of the t0wn clerk, who shall form a
list of the persons Uoted for, with the number
of U0tes for each person against his name
shall make fair record thereof, III presence Of
the selectneen, and in open torn meeting"
lind far copies Of the HSts shdH 6e at
tested By the SelectnteR and town clerks OF
towns and the assessors of plantations and
sealed up in open town and plantation meet
ings, and the clerks of the several towns and
plantations are to cause the same to be dellv-
cred into office of the Secretary of State thirty
days at least before the first Wednesday OF JAN
uary annually; and the Governor and Council
shall examine the returned copies OF such lists,
and twenty days before the first Wednesday OF
January shall issne summons to such persons
as ShGH appear to be elected by plurality OF
all the votes returned, to attend and take their
seats"
Does the Constitution require the clerk to
return the oghole number Of ballots HroacnP 1t
does not.
9. But the Governor invokes sec. 80 OF
chap. of the Revised Statutes in this behalf
in order that he may deceive the public into
believing that he was justified in throwing out
large number of returns because the whote
number Of ballots was not stated.
It did not perhaps occur to the Governor
that if the law of 1877 was unconstitutional be-
cause it permitted simple irJormdlity to be
renaedied, that then he should hold sec. 32 Of
chap also unconstitutional because it rem
dered defectiUe good constitutional return.
Or does the Governor mean for us to under
stand that he is gdling to invoke the aid of
statute which will defeat a good return, but is
not aci3liny to invoke statute which will
remedy defectite one2
The provisions Of sec. 50 of chap. 4, of the
Revised Statues, however, are simply directory,
as to the duties of the selectmen and town
clerk and all authorities hold that failure to
comply with such provisions in all respects
would not invalidate the acts done See Strong
Pet, 90 Pick, 4S4.
The Governor quotes this statute enormously
Sec. 81 of chap was amended by chap. 2l3
of the public laws of 1877 by striking out the
following words, quoted by him, viz:
BLANKS are not to be counted as votes, and
votes for persons not eligible to the office shall
not be counted as votes, but the NUMBER OF
such blanks and the number and names on
ballots for persons not eligible shall be recorded
and return made thereof"
Did he hope by this apparently intentional
misquotation to mislead? He must do SO in
order to justify his action in the case of Farm
ington. whose clerk followed the amended
statute implicitly by stating the whole number,
including blanks, as was also the case in sever
al other towns which were thrown out for
'discreDancies, i. e. the whole number ex-
ceeded the aggregate Of all the votes thrown
for the candidate, because the ''achole number
included the blanks OF which no return was
necessary to be made.
In following papers purpose to continue
this review of Mr. Garcelon's defense of exeeu-
tive usurpation. LEX.
THE sKowHEGAN AND CHERRYFIELD CASES.
In this second communication desire to
call your attention to the third positionof Mr..
Garcelon, who says
3. "The Governor and Council have only en-
deavored to follow, in both letter and spirit'
the Constitution and laws made in accordance
Herewith, as indicated by their ooon judgment
and by the adcice of their duly appointed legal
officer, aided by the best legal talent in the
State.''
This sounds well, but what are the facts?
Take the case of Skowhegan, whose return
was thrown out because in the opinion OF these
eight mon OF sound (?) judgment the Republi-
can ballots contained distinguishing marks
to wit: the names of candidates were printed
in tloo columns instead of one.
What was the object sought to be accom-
plished by the law prohibiting the reception OF
ballots having distinguished marks? Il pds to
preveat bribery Men had been found who
had marked ballots with some peculiar mark,
SO that they could examine them after they
had been counted and ascertain whether all
the men had cast their votes as they had been
paid to do.
Was the Skowhegan ballot OF such a charac-
ter? The common sense of every honest citl-
zen will answer No. 1t was neither within the
spirit nor letter of the law. But suppose it
were otherwise, what right had the Governor
and Council to reject the return?
Let the law answer-I quote sec. 20 of ch.
OF Rev. Stat.
mo ballot shall be received at any election
Of State or town officers unless in writing or
printing upon clean white paper, without any
distinguishing marks or figures thereon besides
the names of the persons voted Tor and the
offices to be filled, but no uote shall be rejected
on this account, after it is receced into the BAL
lot boz.
Again, take the case of Cherryfeld, whose
return was rejected because, forsooth, one of
the three selectmen was technically an alien,
1. e., his father was a subject OF Great Britain
and resident Of New Brunswick when he
was born. His mother was q native of Maine,
and his father dying in his infancy, she return
ed to this State, where he had grown up, and
he and all his neighbors had long since forgot
ten if they ever knew, of this technicality.
During the war ne stood his draft rs citizen,
and his fellow citizens had repeatedly elected
him to public office.
But this wise tribunal decide that, as the Tar
requires topaS 30 elect board Of their select
mea, and one Of these Seiectmen Is an alien and
hence illegally elected therefore the whole Of
them are Illegally elected, and their acts are
invalid
What combination of law and logic OF
course, as they had the advice of the Atty
General and "of the best legal talent in the
State,' their attention must have been called
to the case of Belfast " Morrill,, 60 Me-, 5S1,
from which quote;
"Fhen one Of board Of officers is not legal
ly elected qualified, but is an officer de facto,
he mag legally join in the action Of the board,
aoih those Who are officers de juoe,"
Also to the following cases, in all of which the
court have decided that 1.-THE acts of De ytacto
officers are valid as respects third parties af-
fected thereby"
Brown " Lamb, 81 Me. 423. Cushing v.
Frankfort 81 Me. 5i1. Fowler v. Baker, 0
Mass. 231. Bucllnam v. Ruggles, 10 Mass, 1S9
And numerous other cases which might be
cited.