Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1879-12-11
onstitutionality of the law of 1877, and cited

constitutionality of the law of 1877, and cited
the following:
"On a summary hearing on petition for
mandamus the court will not determine the
question of the constitutionality of the law
involving the right of this person, but on such
hearing will assume that the act is constitu-
tional'. Smyth vs.. Titcomb, 81 NJ, 2s5.
The court say:
''Another objection taken is that the special
law of lS4S, chap. l+0''-under which petit
TONERS claimed-"is unconstitutional, and
that all proceedings under it are void. 1t
does not, however, lie with the respondent
as ministerial officer, to make this objec-
ton. He is not authorized or required to
adudicate the law. y = = = He is not re-
sponsibe for the law, or for the possible
wrong that may result from its execution.
He cannot refuse to act because others may
question his right. The indiv duals to be
affected may not doubt the constitutionality
of the law; or they may exercise their sup
posed rights or wrongs; or may choose to
contest the validity Of the enactment person.
ally"
That portion of the law of 1877 which al
lows the return to be verified and corrected
by the record is not in conflict with, but in
fur,herance of the requirements of the consti-
tuition.
The constitution requires the town clerks
to put their official list of votes and names of
persons voted for into a record. and the record
thus becomes the list or conclusive evidence
of it. Then the clerks are required to return
a copy of such record to the Secretary of
State. and the Governor and Council are to
examine the returned copy of said record,
and from ii determine who is elected. Ifthe
return is not copy of said list or record, it
is not what the constitution contemplates to
be examined.
On a strict construction, the Governor and
Council might be required to reject a return
which was not copy. But the constitution
also provides that every town shall make its
constitutional return, and be represented in
the count.
To harmonic and insure these two
objects contemplated by the constitution,
Mr.. Baker maintained: / That every town
should have return to be counted. 2. That
every return should be a copy of the record
the law of 1877 provides; that every return
which is not n copy shall be corrected and
made copy by the record.
The one thing about which all the provis-
ions of the constitution centre is the record
of the votes cast and persons voted for.
All its prOvisions-that the vote shall
be received, sorted, counted and declared in
open town meeting; that the list shall be
made up with the same safeguards and put
into a permanent record and be the
great eye of the people-all this is to in
sure the absolute truth of the record.
When this is done, then copies of the re-
cords are to be transmitted, and these are re-
CURED to be signed and sealed in the same
public manner to insure them being copies,
to guard against error or possible fraud.
The law Of 1877 simply SEXES upon the
spirit of the constitution, and makes its
Illustration impossible. We respectfully con-
tend that the organic law of Maine will new
er be held to forbid an enactment which
makes it impossible for the expressed will
of the people at the ballot box to be thwart-
ed or reversed by the petty carelessness or
possible fraud ofits agents.
The law permitting the replacement Of lost
original returns Or. S. chap. 4. sec. 35-36-37)
has stood many years on the statute book
unquestioned in constitutionality, yet if the
Governor and Council are confined to the
votes actually returned these would not be
counted.
Mr.. Baker then argued.
|. The constitution makes the Secretary
of State the custodian of the records of the
State. Also of the records of all the acts
and proceedings of the Governor and COun-
Gill;
2. The statutes supplement this by max
ing him the keeper Of all the records He
keeps all papers Of the Governor and Coun-
ell.
3. The constitution especially directs that
these particular records should be returned
into his Office, and the Governor and Coun-
Gil have the right only to examine them after
being thus returned.
In the eye of the law they are examined in
his office and under his custody. In the eye
of the law he accompanies them every mo-
ment they are in the hands of the Governor
and Council. That examination even when
in progress in no way changes their legal
custody.
Suppose returns were made returnable to
the office of the Treasurer, and then it was
made the duty of a State Auditor to examine
them, would that make him and not the
Treasurer their custodian?
Suppose the examining board were again
the selectmen of towns, would the returns
be sent back to each town?
Or suppose the examining board was a
solitary man, living remote from the CAPT
tai, would the legal custody of the returns
follow his remote residence?
If the Bank Examiner was required to ex-
anime the books of bank, or a county COM
missioner to inspect the records or indices
of Deeds would that transfer the custody?
And would not such examination be at the
bank, or the register of deedsf
The returns are by the constitution to be
laid before the legislature.
What provision of the law or the constitu-
ton gives the Governor and Council the GUS
tody of single paper, document or record
belonging to the State? But the Secretary
of State is made the keeper of them all.
If the Governor and Council had the GUS
tody Of any documents they would be in the
hands of their Secretary, and who is the Sec
rotary oeshe Governor and Council, but the
Secretary of the Commonwealth?
Again, the examination is completed when
the tabulation is complete and the report Of
the committee made, and that was on Nov.
IL, 1879.
This Honorable court is the conservator
of the law, and the law trampled under foot
by \ public officer of the State, who has
sworn to obey it, turns its face to you as its
preserver. You are the guardian of the
constitution, and the people, united in their
loyalty to the constitution and the law, yet
jealous of their rights and steady in their old
time love of liberty, and unsleepless in their
eternal vigilance, which is the price of it. de-
mand fair play, an open count and an open
return M guaranteed TO them by the cOnsti.