Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1879-12-15
Judge Virgins Decision.

Inasmuch as the Governor and Council
threw the returns open to everybody on the
very day Of the hearing on the mandamus
case, the result OF the judgment of the Court
was of no special consequence. As the Coun
Gil at once granted all that the mandamus
could in any event secure, Judge Virgins
decision either on the one side or the other
made no particular difference.
In the impartiality which this state of facts
permits desire very briefly to comment on
this decision.
Judge Virgin in his opinion declares as
follows:
lst-The petitioners have a right to in
spect the returns"
2nd-They "have this right by statute"
3rd-"Under the constitution itself indie
pendently of the statutes the same right Of
inspection exists"
4th-The Secretary of State is the legal
custodian of the official returns
5th-"The Secretary of State is bound to
exhibit the returns at all proper times to
those whose interest is such as to justify an
examination of them"
6th-"H is not doubted that the right Of
public inspection exists to the extent indicat-
ed and may be asserted and enforced against
the Secretary"
7th-''It is the duty OF the Governor and
Council to examine these returns within q
brief period, and the duty to examine neces-
sarily includes the right of possession for
such time as is required to complete the ex-
animation
Sth-'If the writ were granted, there must
be reservation in the decree of the right Of
the Governor and Council to hold them ex-
clusively whenever the fulfillment of con-
stitutional obligation demands it."
9th-Wherefore the petition is dismissed
and the writ denied"
Was there ever, Mr. Editor, a more COM
plete non sequitwf Here we find the legal
and constitutional rights Of two parties de-
fined BY the judge First, of the candidate
to inspect the returns Second, of the Gov
ernor and Council to count them. And yet
with a reservation in favor of the second right,
the first right is wholly denied by Judge vir-
gin. The two rights have co-existed, been ex-
ercised together, without jar or conflict, from
the origin of the State down to the rule of
the present Council. If every member Of
the Council were working on the returns and
each had whole county's returns before him
there would still be nine counties in the hands
of the Secretary of State at any given time
for exhibition to candidates. Every petition
laid before Gov. Garcelon and his Council
has asked for liberty to examine returns at
such time as the convenience of the Council
would permit.
Why did Judge Virgin so deliberately define
the constitutional right of the candidate to in
spect the returns, and the constitutional duty
Of the Secretary of State to exhibit them, if
both the privilege and the duty are to be over
ridden and nullified by another constitutional
function? In what sense did Judge Virgin
use the wsrd enforced" as against the Sec
rotary? Did he mean enforced if some-
body else did not object! Most assuredly,
Mr.. Editor. the right Of the candidate, the
duty of the Secretary and the function Of the
Council, are in perfect harmony, and there is
not an instance in the "coufiict Of laws" that
would justify an antagonism between them.
Instead of studying Story, however, fear
Judge Virgin has derived the philosophy of
his ruling from a more ancient authority.
The right of the candidate to examine returns
is perfect, says Judge Virgin. But what if
the Governor won't permit the Secretary Of
State to exhibit them? At that point in the
argument Judge Virgin recurs to his ancient
authority, to be found in Shakespeare Re-
ports, as follows:
"Judge Dosberry-You are to bid any
man stand in the Princes name!'
"Second Watch-How if he will not
stand?"
Judge Dogberry-why then take no note
of him, but let him 60 and thank God you
are rid of knave!"
"Second Watch-If we know him to be a
thief, shall we not lay hands on him?"
''Judge Dogberry-Truly by virtue of your
Office you may, but l think they that touch
pitch will be defled. The most peaceable
way, if you do take q thief, is to let him
show himself what he is, and steal out of your
company"
1t is heard with regret that Judge Barrows
and Judge Symonds-especially the latter
were consulted as to this remarkable opinion
of Judge Virgin. Neither its law nor its
logic will be source Of pride to its authors
hereafter.
The mandamus at so late day was not of
great value to those applying for it. But the
RI l.
granted that haste was made to comply with
it in advance. Judge Virgins decision I'M
doubtedly surprised Mr.. Gould more than it
did Mr. Baker. LEX.