Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1880-01-09
The Reply ofthe Maine Supreme Court
10 Gov, G.RrceloH,

Divested Of evasions and subterfuges, the
questions submitted to the Maine Supreme
Court, by Gov. Garcelon and his Council,
and, briefly stated, the answers returned to
these, are as follows
l. Can the Governor and Council order a
new election Of a Representative, or can the
House Of Representatives admit member
without a return being made to the Secretary
Of State ? The Governor and Council cannot
order a new election, and the House can sd-
NIT member who appears to have been
elected in fact, though not formally returned.
a Representative is not to be deprived Of
his rights because municipal officers have
neglected their duty
=. Can the Governor and Council regard
the statute Of 1877 as in harmony with the
provisions Of the Constitution which direct
an adherence to certain prescribed forms by
which the legality Of the election Of Repre-
sentatives TO the Legislature is to be tested
The Governor and Council not only may. but
must, be guided by the statute, inasmuch as
its obvious purpose is to carry out the intent
Of the Constitution which is, while preserv-
ing so far as possible the regularity Of the re-
turns to prevent the notification Of the pop
ular choice by any mere errors Of form.
About the constitutonality Of that part of the
statute which directs that the results Of an
election shall be declared in accordance with
the facts, there can be no question.
8. Can return be invalidated in default
Of its signature by majority of the select
men Of town or the aldermen Of a city {?
No, because majority Of the legal minimum
Of selectmen or aldermen constitutes a quo
rum, and the signatures Of a majority Of such
a quorum make legal return. return
signed by two selectmen or three aldermen
may, therefore, be valid
and .. Can returns be invalidated by
formal irregularities on the part of city alder
men OF by the lack of the official ate station
of a town or city clerk; No. because the
law seeks to conserve the substance, not the
mere form. The general conclusion to be
drawn from city returns is that to be adopted,
and the attestation Of a clerk pro tmp0re is
good in the absence Of the regular officer.
The Governor and Council have no right to
60 behind the returns
6. Can returns be rejected which were not
made, signed, and sealed up in an open town
meeting; The Governor and Council can
act only on the returns forwarded by the
Secretary Of State. They cannot receive evil
dence to negative facts therein set forth.
I. Suppose return is signed by but two
selectmen, and it appears that there were at
the time Of meeting at which the election was
held but two selectmen Of that town, would
eventualities which would render such a re-
turn legal, but the plain duty of the Governor
and council is to be governed by the returns
They can have no official knowledge Of the
number of selectmen who sign such returns.
S. Would the fact Of a selectman being
an alien inyalidate a return: Decidedly not.
Q and 10. Can the Governor and Council
make what they may consider to be 'distin-
gushing mark" on a ballot a ground for its
rejection, andare dots ditto" marks placed
under figures, signifying an equality Of votes
in the same return, to be accepted as evidence
Of such equality? The town officers are the
judges Of the admissibility Of ballot when
must be counted, and the Governor and
Council can take no cognizance of it's eIter-
nal form So, also, in dealing with returns
their obvious intent is to be considered, not
their form
II. Can the Governor and Council decide
as to the kind of evidence they will receive to
enable them to determine the genuineness of
the returns required by the constitution
The genuineness Of the signatures affixed TO
the returns must be questioned and proper
notice given to all the parties interested be-
fore the Governor and Council can take evil
dence tending to invalidate them. When
these preliminaries have been complied with,
their action should be guided by well-estAb-
lished rules
y. How are the Governor and Council 10
decide between the two lists Of votes, regular
in form, but differing in the number of votes
returned az cast for the same person Ac-
cept the return frst received by the Secretary
Of State, and if defective or not true copy
of the record let it be corrected in accord
ance with the provisions Of the statute for
such cases made and provided