The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1879-12-11

man who is a citizen, and an open record OF
the state is open TO every man VINO mas di-
rect and personal interest in its contents. The
people have appointed this respondent to Keep
thefnrecords for them. Shall they not have
access to their own? Is this creature ABOVE
the creator? the public servant above llle pup
liz whom he serves? pay a man TO "atch my
house and he refuses me admission 10 H..
deposit my money in bank for safe keeping
and the bank denies it to me. The court APP
points clerk to- keep its papers and the clerk
refuses to allow the judge to inspect them.
The Governoriand Council, under the CON
stitution. as interpreted by the Supreme Court
of this state, have power to judge and receive
evidence on two points: First, Whether the
signatures are made personally OF py agens.
Second whether the signatures are forged.
On either of these grounds they may iGiece
return. On both these points the petltloners
have an undoubted right to be hearo, Inc
right of hearing, indeed, is conceded by tne
order of the Governor ana CounCil VI Wy u'seo
of Nov. %. fixing Dee. LIST to 18TH Iof tne pur-
pose. But on neither oil tnese pome' and ts
original papers to judge OF the SIGNATURES ana
introduce evidence thereon. Witnouo Ihls, on
which return from the county Oh LlhColh shail
the Senator-elect ask to be nearu! Oaii ne 10
heard ON a return which he is not supposed to
see and on detects he is not permitted to
kn ow? To which return or to What deIect
shall he summon his witnesses ana oIecC MS
arguments? For all purposes then, open Tor
the Governor ana COuDClI " JuuSo, pay
affected has the right, under tlie cohstiI"'ioh'
TO examine the returns.
That norton of the law of 1877 which allows
the return to be verified and corrected by the
record is not in conflict with but IN 1urtner-
ance of the requirements of the constitution.
The constitution requires the town clerks to-
put their official list of votes and names OF per-
sons voted for into a record ana the record
thus becomes the list or conclusive evidence OF
it. Then the clerks are required to return
&c oh 10 a Sppppt1rV St1tat
! and the Governor and Council are to examine
| the returned copy of said record and from 1t
| determine who is elected. Ii the return IS not
a COPY of said list or record 1t is not what the
| constitution contemplates to be examined;
| On a strict construction the Governor and
| Council might be required to reject return
| which was not copy. Bnt 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 maintaned: First, that every town
| should have return to be counted; second.
that every return should be a copy of the re-
cord. The law of 1877 provides that every re-
| turn which is not a 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, sort
| ed counted and declared in open town meet
| ing; that the list shall be made up with the
same safeguards and put into permanent
| record and be the great eye OF the people,
| All this is to insure the absolute truth OF the
| records When this is done then copies OF the
| records are 10 be transmitted, and these are re-
| qured to be signed and sealed in the. same
| public manner to insure them being copies and
| to guard against error II possible or fraud.
| The law of 1877 simply seizes upon the spirit
| of the constitution and makes its frustratlon
| possible. We respectfully contend that the
| organic law of Maine will never be held to
forbid an enactment which makes it impossi-
BILE for the expressed will of the people at the
| ballot box to be thwarted or reversed by the
petty carelessness or possible fraud OF It's
| agents.
Mr.. Baker then argued first 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 Council. Second, the statutes supplement
| this by making him the keeper of all the
records He keeps all the papers of the
| Governor and Council. Third, the copstitp-
ton especially directs that these particular
records should be returned into his office and
the Governor and Council have the right only
to examine them after being thus returned.
| In the eve of the law they are examined IN his
| Office and under his custody. In the eye OF
the law he accompanies them every nome Mt
| 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 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 capital, would the
legal custody of the returns follow his remote
residence? IF the bank examiner was re-
ouired to examine the books of bank, or a
| county commissioner to inspect the records OF
| induces of deeds, would that transfer the
custody; and would not such examination be
at the bank or the registry of deeds? The
| returns are by the constitution to be laid be-
fore the legislature; what provision of the law
or constitution gives the Governor and Council
the Custody of single document or record be-
longing to the State? But the Secretary OF
State is made the keeper of them all.
/ Mr.. Baker closed as follows: This honorable
court is the conservator of the law, ana the
law, trampled under foot by public officer OF
the State who has sworn to obey 1t, turns lfE
face to you as its preseryer- Yen on, are thf
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 unsleep-
less in their eternal vigilance which IS the
price of it, demand fair play an open count
| and an omen return, as guaranteed to them by
the constitution under which they were born
and the law which their Representatives have
made.
N''NN-ASN
Webb, his associate, who was allowed to adj
dress the Court by the courtesy Of the Other
side out of turn, as he was obliged to leave the
city to meet a professional engagement. MIR
Webb paid high compliment to his associate
for his logical argument, and said that as it
covered the case he did not propose to traverse
the same ground. He spoke of the technical
objections that had been raised and contendeC
that there was no point in the petition of the
reator that is denied and therefore his case is
made out. The answer to it is nothing but q
protest and is wholly evasive. The allegations
of the petitioners are only met with denial
The Secretary of State is the legal custodian OF
the returns and is not justified in disposing Of
the same to the Executive Council to avoid re
sponsibility In law this is the fact. The
safeguards thrown about them at the polling
place where they were cast in open town meet
ing amid the temper and the passions OF men
are sufficient, There protection is called for
and protection is afforded. In the Secretary
of States custody they are open to the inspec
ton of the public The answer of the respon
dent does not meet the requirements OF the
case and he saw no reason why mandamus
should not be issued. The Secretary of State
is only servant to the Governor and Council
SO far as the law makes him, but he IS MOI
amenable to the Governor and Council. NO
where in the Constitution of Maine can 1t be
found required of him to surrender to the GOV
ernor and Council the possession of returns OF
| of any records. They must remain IN his Gus
tody until by law he is obliged to deliver
them into the hands of the Legislature. When.
ever they are examined by the Governor and
Council they remain in his possession and IL
| his custody, and they are there for the pur-
| poses which the law requires.
| This whole answer and whole refusal Is
based upon the theory that while the Governor
and Council have them in their keeping fol
examination and inspection the Secretary /;
Invested of all responsibility. This strikes al
the fundamental law of the State. The courts
decision is this case will be the rule and guide
for all coming time. The necessity and eX-
igency for a prompt and thorough examination
| is expected, and when the decision of your
| honor is made he (the counseD believed it
would be accepted " iih unanimity by all good
and law abiding citizens.
Mr.. Webb spoke for about half an hour
and on the conclusion Of his remarks the court
adjourned until tomorrow morning at nine
| o'clock.
Cumberland County Hearing.
| Especial Despatch to the Press.
AUGUSTA, Dec. 10.-Tuesday, in accordance
with an appointment previously made with
Messrs. FL. G. Peabody, S. L. Larrabee and A.
w .Coombs Republican candidates respectively
for the offices of Judge and Register of Pro-
bate and County Attorney in Cumberland
county, a hearing was had before the Govern