The Portland daily press., 1880-01-17

the members elect being read as they appear
by the official returns and the decision OF the
court be qualified before a dedimus Justice
and thus constitute and organize legal Sen
ate.
4as.--To the 14th, oath and 25th questions
proposed we answer as follows:
In the general provisions of the constitution,
article g. certain oathS or at1irmations are pro-
vided for persons elected, appointed or COM
missioned to the offices therein mentioned. 1t
appears that those before whom the prescribed
oaths were to be administered refused to act
and that now there is no existing Governor
and Council before whom they can be admin
istered. The oath is prescribed. The terms
are the essential features Its binding force
depends upon its terms, not on the magistrate
by whom it is administered. If there is no
Governor and Council or being Governor and
Council they refuse to administer the oath to one
representative or to all; for there can be re-
fusal to all equally as to one, what is the re-
suit? Is anarchy 10 triumph? Can the gov
eminent be destroyed or its action paralyzed
because there is no Governor and Council be-
fore whom the prescribed oath is to be taken?
we think not The prescribed oath from the
necessity of the case, may be taken before
magistrate authorized to administer oaths.
The members must be sworn before they can
act 1t is by their action that Governor and
Council thereafter is to be elected and the gov
eminent continued. 1t cannot be presumed
that the trainers of the constitution had i'll
contemplation that the oath had better not be
administered at all than administered by any
other officer than the one designated therein
This is one of the most reliable tests by
which to distinguish a directory from a manda-
tory provision.-State VS.. Smith, 81 Maine, o2o
Question IS.
Is. When the term of one Governor has ex-
pired by law and no successor has been chosen,
can the President of the Senate become Acting
Governor if at his election twenty votes only
COS and m and thncp tyUaOtV
votes are made up as described in question II
Ans.-Our reply to the 9th question is in the neg
ative that one whose only title to the Presidency OF
the Senate is by virtue OF such an election canno'
become the acting Governor because he is not le-
gal President of the Senate. II of the twenty vo-
ing at such choice of President of the Senate eight
did not appear to be elected by the official returns
under the Constitution and the decision of the
conrt, and were not in fact elected there was thea
no legal quorum and could be no valid election OF
permanent officers, notwithstanding the eight had
been summoned by the Governor andCouncil. With
out legal quorum and with the eight participating
in the proceeding to the exclusion of those rghtfuly
elected in their place, there could be valid cleo
ton of President of the Senate To proceed with
the organization of the Senate without first deter
mining and declaring its own membership when at
tenton properly called to the fact hat persons
were present acting without right and that members
were excluded the Secretary refusing to entertain
motion for the correction of the roll and refusing to
allow an appeal from this ruling, and the Senate
taking action although protest was made, was
illegal and void.
Questions 10 and II.
is. Can legally chosen President of the
Senate become acting Governor until he has
been legally qualified as such, in addition to
his qualification as President of the Senate 2?
II. Can such qualifying oaths be legally adj
ministered by a President pro tempore of the
Senate, in joint convention of the Senate and
House of Representatives, when less than
seventy-sx members of the House are present
or voting ON the motion to proceed to joint con-
ventiOn -?
Ans-Under the letter of the constitution it is at
least doubtful whether the President of the Senate
is required to take new oath before exercising the
Office of Governor. When that office has become
vacant in the manner specified therein, the prac-
tice since the organization of the state has, be
eve been uniform against requiring such new oath
and to such practice the Interpretation of the con-
stituton in the absence of express provision or man
fest intention to the contrarywe think effectshould
be given.
10 the sixteenth question: we reply that legally
chosen President of the Senate may become acting
Governor without the administration of any other
qualifying oath than that which he has taken in his
The answer to the sixteenth question renders
reply to the seventeenth unnecessary.
Question 10.
Is. When twelve persons are legally elect
ed members of the House of Representatives
from the five cities of Portland, Lewiston,
Rockland, Bath and Saco, and that fact unmis-
takably appears on the official returns and by
the decision of the court on the facts recited in
in the statement herewith submitted, have
those twelve members elect right to take part
in the organization and all subsequent proceed
ings of the House without a summons from the
Governor and Council, no other persons hold
ing SummonseS for the same seats?
AnS.-To the eighteenth question we answer as
follows: 1t appears from the statement of facts that
the members from the five cities of Portland Lewis
ton, Rockland Bath and Saco were duly elected az
we'll as by the returns before the Governor and
Council; that by law a summons should of right
have been issued to them; that in fact summons
issued, and that thus names were not bourne on
the roll certified to the House provided by r. s..
C. 2 sec. 25. A motion seasonably made that
these members appearing by the returns before the
House to have been duly elected, shod be permit
ted to participate in its organization but the assist
ant clerk refused to put the motion and to entertain
appeal By the constitution the returns were
before the House. By those returns the Representa-
tives above named appeared to be elected. Their
seats were not contested. The Governor and Coun-
Gil could not without violation OF their constStu
tional duty neglect to issue to them summons nor
the Secretaryof State to place their names on the
certified roll which it was his duty to furnish. The
Governor and Council could not legally withhold
their summons from those appearing to be elected
They could not order summons to issue to some
appearing to be elected and withhold it from Others
If they could it would be in their power to select
from the members appearing to be elected those
who should and those who should not take part in
the organization of the House. The section 20, r.
s., 2 restricts the vote to those whose names are
borne on the certified roll The restricting the vote
to those only whose names are thus borne at vari-
ance with the constitution in SO far it restricts
and limits the action of the House to those whom
the Governor and Council may select, and not to
those appearing to be ch0sen.andwho the House may
determine to be members. The twelve member; had
Alright to act in the organization of the House.
Their election was patent on inspection of the re-
turns. The House in no way denied theI right
The ques ion whether their names should be added
to the roll not submitted to its determination
Upon the facts set forth they appeared to
be and were elected, and it is not to be pre-,
sumed that the House knowing such facts would
have prescribed their action if the Clerk had per
mitted the action to be put. These members had
right take part in the organization of the House
until it should otherwise determine,
Question 10.
10. Can 8 House of Representatives legally
organize Or act under a certified roll contain
ing one hundred and thirty-nine names only,
and giving no representation to the five cities
of Portland. Rockland, Lewiston, Bath and
Saco, under the facts stated in question 49,
without admitting at once the twelve members
from said cities.
Ans.-The House cannot legally organize or act
under a certified roll of 1879 names only and giving
no representation to the five cities named, provided
the representatives from the cities appeared and
claimed their seats and the House took no action
whatever upon the question of their right 10 par
ticipate in the organization, the clerk refusing to
entertain motion made for that purpose and refus-
ing to entertain an appeal from his ruling thereon.
Question 20.
20. Where persons are legally elected men,
bers of the House from the Representative dis
tricts CT Slsowhegan and Pennington, and that
fact Enthusiastically appears on the official re-
turns and by the decision of the court on the
facts recited in the statement herewith sub
mitted for those districts, have those members
elect a right to take part in the organization
and all subsequent proceedings Of the House
without a summons, the persons summoned
having returned their summonses and declined
to serve as Representatives on the ground that
they were not elected?
Ans.-To question co. we answer in the aftirma-
tive, unless the House has acted upon the question
of their right to act as members and determine to
the contrary.
Questions 81 and %.
81. Can II members duly elected and sum-
moned and seven other members not summon
ed, but appearing TO be elected by plurality
of all the votes returned" under the require
ents of the constitution and the decision of
the court, constitute and organize legal SEN
ate provided said eight members each receiv-
ed for Senator plurality of all the votes cast
and the official records as well as the official
returns show that fact?
%. Can 81 duly summoned members elect
of the House of Representatives, together with
IL members elect not summoned from the cities
of Portland, Lewiston, Bath, Saco and Rock
land, and two members elect not summoned
from the towns of Pennington and Skowhe
gan, constitute or organize legal House of
Representatives when the fourteen members
above enumerated were in fact elected, and
that fact appears by the official returns and by
the decision of the court, no other persons
I. fo,.+ I, 800