The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1879-12-29
Duty of the Governor and Council.
The Opinion Of Democratic Lawyer on
the Count Out.
Bangor Whig.l

By the Constitution of Maine the first duty
in relation to the copies of lists of votes returned
into the Secretary of States Office that devoved
upon the Governor and Council was to deter
mine if the lists were what they purported to
be, and having found them to be such lists as
they were by the Constitution authorized to act
upon; then from an examination of them to
ascertain who appeared to be elected and to
Issue summonses to those who appeared to be
elected Senators and Representatives to attend
and take their seats on the first Wednesday of
January next.
The Constitution invested the Governor ard
Council with power to examine copies of lists
of votes received, sorted and counted and de-
clared in open town meetings duly warned and
presided over by the seectmen Of the several
towns in the State, provided said lists were
made in open town meeting, and there attested
by the selectmen and town clerk and sealed up
in said meeting. And to determine if copy
was what it purported to be, its validity being
questioned, the Governor and Council had an
undoubted right to receive evidence so as to as
certain if it was such a return as they were
legally authorized to act upon.
A return that had not been signed by the
selectmen or requisite number of selectmen,
or from which the name of the town clerk was
omitted would on its face appear defective and
further consideration of it on the part of the
Governor and Council would be unnecessary.
But when returns are only defective from
causes that do not conclusively appear as the
return, then as to evidence of such facts the
Governor and Council should proceed, acting
in judicial capacity, and upon notice to par
tiac in iOtarpSt tO 6atnrmina nv pViUanpA If
what appeared to be return was such as the
Constitution contemplated.
If a return opened and examined by the Gov
ernor and Council bore the names of the Sc
lectmen and town clerk of the town from
whence it came the presumption would be
that the proper officers had signed; but that
presumption would not be conclusive and
could be overcome by evidence. But the evil
dence to overthrow such a presump,.
ton should be received subject to all
the tests and requirements of legal investiga-
tions and should not be supposititious or merely.
eI pGrte.
1t has been widely published, and so far as 1
am informed without contradiction, that the
return of the town of Lisbon was rejected be-
cause it appeared to those who inspected it,
that the names of the selectmen on the return
seemed to be all in one handwriting, and on
that the most uncertain and unsatisfactory OF
all receivable eyidence-the comparison of
handwritingS-a return which was in every
particular in conformity with the constitution
al requirement was rejected; and the voters OF
that town deprived oil most sacred right; one
upon which rests the perpetuity OF our republi-
can institutions.
If there was that in the return from Lisbon
that raised a doubt as to whether the select
men of that town each signed his own name to
the return presented to the Governor and
Council for their examination conceive it to
have been the duty of the Governor and Coun-
Gil to have received evidence to as that fact
from those whose names appeared on the re-
turn or from persons who were present in the
town meeting when the return was signed.
Evidence from such source was accessible
and would undoubtedly have been conclusive
as to the fact involved, and if upon such evil
dence the Governor and Council had found
that the return was not signed by the select
men, each writing his own name, then the re-
lection of the return would have been in ac-
ernor and Council by the Constitution and
laws of the State, the performance of which
would have merited the appreciation of all
honest citizens irrespective OF party.
But the rejection of the Lisbon return upon
such evidence as is reported to have been acted
upon, cannot but be condemned by very many
of the Democratic party, as it partakes too
much of acts that have been repeatedly de-
nounced by that party, and is pregnant with
an evil subversive of the will of the people as
expressed at the polls.
When the Governor and Council had exam
ined return and were satisfied that it con-
formed to the requirements of the Constitution,
in this: that it came from meeting duly
warned and presided over by the selectmen of
the town and bore the signatures of the select
men and town clerk and had been signed and
sealed up in open town meeting, then it was
their duty to examine the return and ascertain
who appeared to be elected and the Constitu-
tion clearly defines what examination they
were to make, viz: They were to examine the
return containing the names of persons voted
for with the number of votes for each person
against his name, and to issue summons to
such persons as appeared to be elected by
plurality of all the votes returned
If return had been duly signed and in
every respect coDformed to the constitutional
requirement, the fact that vote such as had
been received at the polls had been att1ched
could not affect or vitiate the return
If return was complete any addition to it
would be mere surplusage, and of no conse-
quence. 1t is asserted, currently reported and
uncontradicted, that the Governor and Coun-
Gil rejected the vote of Skowhegan because the
vote thrown by one of the parties Q believe
the Republican, was printed in such a manner
as to give it distinguishing marx.
It is quite impossible to comprehend by what
reasoning the Governor and Council were in
duced to assume the power OF reviewing the
Judgment of the selectmen IN the Skowhegan
town meeting, for there is no provision of law
in this State the reasonable construction of
which authorities the Governor and Council
to inquire whether, votes received, sorted,
counted, declared and recorded in open town
meeting did or did not have distinguish
ing marks.
The selectmen are the judges as to what are
distinguishing marks on votes, and are to re-
ject such votes when offered; but when votes
have been received into the ballot box by the
selectmen they having jurisdiction over the
subject matter, no power is conferred upon the
Governor and Council to say that such votes
shall be rejected.
The act of the Governor and Council in the
SkoWhegan case, if the report in relation to it
be true is to be regretted, and is q grevous
disappointment to all Democrats who desired
70 see the law in relation to returns enforced
strictly honestly and impartially.
While l am of the opinion that chap 212 of
Governor and Council to correct, or allow re-
turns for State Senators and Representatives
to be corrected and that so much of said chap
ter as relates to the correction of returns for
such Senators and Representatives conflicts
with the Constitution and is therefore void
concede that the constitutionality of law is
always question of grave importance when
mooted, and where it applies so directly to the
interest of all the citizens of our State, as
in the present instance, it would seem to
be matter of sufficient moment to have been
submitted by the Governor and Council to the
Judges of the Supreme Judicial Court for their
construction and determination.
And now in concluding have to say that
thus publicly express myself to avoid being
classed with those of the Democratic party
who endorse and fully approve of the course
pursued by the Governor and Council in rela-
tion to the returns recently canvassed by them.
am not willing by silence to seem to ap-
II. r H.