Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1879-12-12
Close Of the Mandamus Hearing
Final Arguments Yesterday
Decision Probably to-day.

The hearing in the mandamus case was
resumed before Judge Virgin in the Senate
Chamber yesterday. The attendance of
spectators was about the same as that of the
previous day.
The court came in at o'clock A. NJ. when
Hon. A. p. Gould opened the case in behalf
Of the respondent.
Mr.. Gould argued that the Executive, and
all the officers of his department, in the per-
Torrance of their official duties are independ-
ent of all interference or direction by the
Judiciary. and that this is a fundamental
principle of our form of government.
The Secretary of State, in all he has to do
concerning the returns of the election of
members of the Legislature, at least until
such returns have been examined by the
Governor and Council, and they have ascer-
tanned and determined what persons appear
to be elected by the votes returned, and
made their report thereof, is the political or
confidential agent of the Executive, and the
mere organ Of executive will and there is
no power in the court to direct or control hi.
conduct in any respect.
The returns are sent to the Secretary's Of
flee sealed, and remain so until opened by the
Governor and Council. He has no authority
to break the seal. The duties required of the
Executive, until they are fully performed,
make it indispensable that the returns shall
be in his possession, or under his constant
control. They must be in the possession of
the Governor and Council, as this is inds-
pensable to their proper examination. If
during the period required for the examina-
ton and the decision as to what they prove,
the Secretary has possession any part OF the
time, it is simply as agent of the Executive,
who must be able to control them at all times
without interference by others, or it ould be
impossible for him to perform his duties
A writ of mandamus, therefore, will not be
issued against the Secretary of State, unless
like writ would be authorized against his
superiors in Office, the Governor and Coun-
ell
Mr.. Gould then cited authorities to sustain
his position, stating among others that in a
recent case in Michigan, the court held that
the courts of State have not jurisdiction to
compel, by mandamus, the Governor to per-
form duty imposed upon him by law
phether ii be ministerial or POLITICAL Nor
has the court authority, by mandamus, to
coerce any Independent tribunal, created by
the constitution Of the State.
In this State. the duty to examine election
returns, and to determine what persons are
elected, is clearly judical; and in such
case, there is no authority in this country,
which holds that the court can interfere. Au-
thorities in support were given.
The learned counsel contended that there
must be a specific legal right as we'll as the
want of specific legal remedy, in order to found
an application for a mandamus. And there
must have been direct refusal to do that
which it is the object of the mandamus to en-
force.
Respondent does not refuse. He simply in
formed the petitioner that the returns were
not in his possession. The writ of mandamus
is not a writ of right, but is issuable only at
the discretion of the court. Parol evidence
is receivable to show that the writ should not
issue.
The petitioner has no legal right to inspect
the returns Of the election of members of the
legislature. 1t is purely matter of discre-
ton with the Governor and Council whether
they will exhibit them during the count and
adjudication which is being made by them.
And, if they do so, 1t is for them alone to sav
at iehat time and place they shall be exhibit.
ed; and the Secretary of State can do moth
ing touching it, except rs directed by them.
The purYOse for which the petitioner allep-
es he desires TO see the returns is not a lawful
one.
The lists returned BY the officers Of the