Montgomery County sentinel. [volume] (Rockville, Md.) 1855-1974, 1880-01-09


ies which are not sttestsd By the town OF city
clerk valid within The sams section2 Az
swer. No. The atteststion tof the clerk Is .
prsrequisits 10 any action fof the Governor
and council in counting the votes, (6s Maine,
$685. II, however, the clerk should be abb
sent, clerk pro tempore may be chosen or
deputy clerk may be appointed under the
statute Of 1877, chapter II, and amendment
thereof. By the act Of 1874, chapter l59, the
returns of such clerk pro tsmpore or deputy
clerk are TO have the same force and effect as
II signed by the clerk.
- Question 6. Have the Governor and couu-
Gil right 10 reject the returns OF the election
OF members Of the Legislature required by
the same section from the officers Of towns,
which were not made, signed and sealed up
in an open town mseting2 Answer. The
Governor and council must act upon the re-
turns forwarded to the secretary Of State. II
they purport to be made, signed and sealed
up In an open plantation or town meeting,
they constitute the basis of action of the can
wasting board. No provision is found in the
constitution or in any statute of this State
BY virtue Of which they would be authorized
to receive evidence TO negative facts therein
set forth. They therefore have no such power
This statement Of the municipal officers is in
that respect conclusive
Question Z. Is the return Of two persons
purporting TO be selectmen of town valid
and sufficient evidence of the vote OF the
town, when IL appears that there were, at the
time OF the meeting at which the election was
had, but two selectmen of That town? An
swer. When majority Of selectmen are abb
sent from meeting for election purposes, or
being present, neglect or refuse 20 act as such
and to do all duties required Of them, the
voters at such meeting may choose so many
selectmen pro tempore as are necessary to COM
plete the number competent 10 do the duties,
(R. g., C. 4, sec. 2o.) In case OF death or
removal OF all the selectmen two would be
sufficient and competent to act. The inquiry
is il the return would be valid when there
should be but two selectmen at the time OF
the meeting at which the election was had !"
II the other selectmen had deceased prior to
the meeting the survivors might act, and
their action would be legal. But the can
wasting board are 10 be governed by the re-
turns. Evidence would not be admissible TO
prove the fact that there were but two select
men of the town. The Governor and coun-
Gil cannot officially know that there are only
two,
Question 8. Can a PERSON who is not cit
iZen OF the United States at the time be legally
elected or constituted a selectman OF Il town?
Answer. A person not citizen may be elected
or constituted selectman, so that his official
acts bind the town and are valid so far as
affects the public. Such a one would be an
officer de Jdcto and be clothed with apparent
rights. His acts would bind the town. (Da-
ma vs.. Derby, 81 Maine, 95.) An officer de
tacto is one who comes into Office by color of
legal appointment or election. His acts in
that capacity are as valid, as far as the public
IS concerned, as The acts Of an officer de jure
His title cannot be injured INTO colIaterally.
1.-THE People VS.. Cook, Seden, 80 "The
precise definition Of an officer de fdcto, +" OBJ
serves Bigelow, c. j., in the case OF the
Fitchburg Railroad Co. VS.. the Grand juno
ton and Depo, Co., Allen, 557, sis one
who comes in by forms of law and acts under
a commission OF election apparently valid,
but in consequence Of some illegality, inca
pacity or want Of qualification is incapable
of holding the Office" Indeed, there is an
entire unanimity OF opinion on this ubject
in all States OF the Union where this question
has arisen, AS well as in the courts OF the
United States, but the fact Of slieuage is not
allowed to be proved. This was determined
in the Frenchville case, (64 Maine, $50, !
where il was shown that the clerk was an
alien who could neither read nor write the
English language, and where almost every
conceivable irregularity existed. Yet evil
dence outside OF the return was held mad
missible, nor would such fact have any effect
it it appeared In the return itself.
Question o. II q ballot has distinguishing
mark, in the Judgment Of the Governor and
council, such as would make it illegal under
the statutes, have they the authority TO disre-
gard 1t in their ascerlainment of wha, per-
sons appear 70 DO elected, where il appears
by The omciai returus Of the officers of The
town that such vote was received by these
lectmen, subject TO their objection, and its
legality referred TO the Governor and council
for decison2 Answer. The presiding off.
GERS are TO determine whether the ballot
Offered has distinguishing mark or figure
so that tbs rsjected voter may procure a bal
lot 1t he chooses TO which no exception can
be taken. If the ballots have distinguishing
marks or figures 1t is no part of the duty Of
the officers Of the town TO make any report in
reference thereto. They should reject the
ballot if offered when it is within the prohi.
bition of the statute. The statute prohibits
rejection of the ballot latter it is received
into the ballot-box." II is then 10 be
counted. The Governor and council have
nothing to do with the question their duty
IS to count the votes regardless of the fact
improperly set forth in the returns They
nowhere constituted tribunal with iu-
dicial authority 10 determine what shall con-
stituie distinguishing mark or figure nor
can they legally refuse to open and count the
votes returned "a Maine, 602.) When the
ballot has been once received in the ballot
box neither selectmen nor Governor and
council can refuse to count il.
Question 10. II names Of persons appear in
a return without any number OF votes being
stated or carried out against them, either ia
words or figures is 1t the duty of the Cover
nor and council 10 treat those persons as hay-
ing the same number OF votes as another per-
son received for the same Office, and whose
name is placed hrst in the return, IL they fiud
dots under the figures or words set against
such other persons name? Answer If .he
ditto marks or dots are placed under the fg-
urss or words of the first candidates vote.
the return should be counted. Where il ap-
pears by the letters or figures in the first line.
and BY ditto marks or BY dots in the follow
ing lines, thai same class of candidates re-
ceived the same votes, there can be no ground
tor rejection. The word ditto and its ab bre-
Walton TO "do.," and the dots are marks
that stand for the word ditto in common use,
and have perfectly well-defned meaning,
known to persons generally. That meau ming
should not be disregarded. We answer the
question Ia the affirmative.
Question IL. Have the Governor and coun-
Gil legal right to decide what kind of evidence
they will receive and what mode of proceed
ing before them there shall be 10 enable them
to determine the Commences of returns re-
quired by the article and section Of the con-
stitution above mentioned Answer. We
assume that the genuineness OF the return
referred to relates either 10 the signatures of
the officers signing or 10 alterations Of the
return. The Governor and council have no
power to reject returns on either ground I'M
lees AN objection Ia writing is presented 10
them, setting forth that the signatures Of
such Ulcers or some of them are not genuine,
or that the return had been altered after ii
was signed. Then notice thereof should be
given to all persons interested, and when adj
Indicating upon facts the Governor and coun-
Gil shonld be governed in the admission of evil
dence by the established rules OF evidence in
accordance with the laws Of this State. The
should be duly sworn, that they
may be punishable for the crime OF perjury
Il they willfnlly and corruptly testify falsely.
The Governor and council have no right 10
reject the returns for such cause without Civ.
iDg the parties interested therein n fair op-
portunity to be heard. The genuineness Of
a return N these particulars Is 10 be pre-
sumed, and this presumption remains until