The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-01-05

stance only ~ sought for In such mat
ters. Nor Il Il q material matter that In
stead OF returning all the names OF persons
voted for there IL return OF votes as scat
| tering; provided that, however, such votes
| may be added or subtracted when some
| candidate or set Of candidates appear 10 be
| chosen by plurality OF the votes thrown.
| The Governor and Council csnnot officially
know. nor have they the right TO ascertain,
that the votes returned as scattering were
not actual ballots, with the word "scatter.
Ing" written thereon, nor IS the election OF
candidates TO he chosen by a plurality
Of votes to be defeated because the
whole number OF votes or ballots
may be stated enormously, or not stated
at all. The Constitution contains no such
| requirement, and the statutory provision
requiring 1t Is entirely uuimPortant. and
inapplicable 10 cases where a plurality OF
votes elects. IL is well-settled rule OF the
| Constitution that where the general terms
OF the statutes embrace several subjects, but
| are found 10 be particularly applicable to
some Of the subjects and not TO others, 1t Is
| to be construed as embracing those subjects
| only TO which il is particularly applicable.
Answer 5. Returns from towns and cities
which are not attested by town, plantation,
or city clerk are not valid. The attestaton
OF the clerk is prerequisite to any action
| OF the Governor and Council in counting
votes. (6S Maine. $751; II, however, the
clerk should be absent, clerk pro tempOre
may be chosen or q deputy clerk may be
| appointed under the statute Of 1877 &c. Il.
and the amendment thereby By act OF
| 1874 &C.. 159) The returns OF such clerk pro
tempOre or deputy clerk are TO have the
same force and effect as il signed by the
clerk.
Answer 6. The Governor and Council
must act upon returns forwarded to the
Secretary Of State. IL they purport to be
made, signed, and sealed up IN open planta-
ton or town meeting, they constitute the
basis Of action OF the Canvassing 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 10 negative the facts therein set
forth. They therefore have no such power.
The statement Of the municipal officers is
in that respect conclusive.
Answer 7. When majority OF the select
men are absent from meeting for election
purposes, or, being present, neglect or re-
fuse TO act a. such, and TO do all duties re-
quired Of them, the voters at such meeting
may choose so many secctmen pro tempOre
as are necessary TO complete the number
competent to do the duties. (R. S., C. A. Sec
ton 20) In case of death or removal ofsse-
lectmen, two would be sufficient and compe-
TENT act. The inquiryis. il return would
be valid when there should be but two Sc
lectmcn sat the time OF meeting at which
an election was held" II the other select
men bad deceased prior 10 the meeting the
survivors might act, and their action would
be legal; but the Canyasslng Board are 10
be governed by the returns. Evidence
would not b. admissible 10 prove the fact
tina, there were but two selectmen Of the
town. The Governor and Council cannot
officially know that there are only two.
Answer 8. n person not citizen may be
elected or constituted 4 selectman, so that
bis official acts bind the town and are valid
so far as affects the public. Such one
would be an officer de fdctO, and be clothed
with apparent rights. HIS acts would bind
the town Dare Us. Derby, 81 Maine, 90.
An officer de fdctO is one who comes into
office by color OF legal appointment or
election. His acts in that capacity are
as valid, so far as the public is concerned,
as acts Of an officer de jure. His title
clnnot be inquired into col literally Peo-
pie Us. Cook. Seldcn, s9). "The precise
definition Of officer de fdctO," observes
Bigelow, C.. j., in the case OF FltcEburg
Railroad Company u.s. Grand Junction and
Depot Company, Allen, 5j7 sis one who
comes in by forms OF law, and acts under
commission or election apparently valid,
but in consequence Of some iIlegality, in
capacity, or want Of qualification, is inca
pable Of holding Office" Indeed, there is
entire unanimity Of opinion on this SUBJ
oil - Tnfn
where this question has arisen, as well as
in the courts Of the United States; but
the fact OF alienage Is not allowed
to be proved. THIS was determined in the
FrenchsIle case, Ga Maine, $50, where it was
shown that the clerk was an alien who could
neither read nor write the English language,
and where almost every conceivable rregu-
lariiy existed; yet the evidence outside OF
the return was held inadmlssibIe, nor would
such fact have any effect if it appeared in
the return itself.
Answer 0. The presiding officers are to
determine whether the ballot offered has a
distinguishing mark or figure, so that the
rejected voter may procure ballots, il he
chooses, to which no exception can be
taken. II the ballots have distinguishing
marks or figures, it is no part OF the duty
OF the officers of the town TO make any re-
port in reference thereto. They should re-
ject a ballot, il offered, when it is within
the prohibition OF the statute. The statute
prohibits the rejection Of ballot cater it
is received into the ballot-boX." II is then
to be counted. The Governor and Council
have nothing tosaD with the question. Their
duty is to count the votes regardless OF the
fact that they are improperly set forth in the
returns. They are nowhere constituted a
tribunal with judiciary authority to deter
mine what shall constitute distinguishing
mark or figure nor can they legally refuse
TO open and count votes returned. (54
Maine, 602.) When ballot has been once
received in the ballot-boX neither selecimen
nor Governor and Council can refuse TO
count it.
Answer 10. II ditto marks or dots are
placed under the figures or words OF the first
the votes returned should be
counted. Where it appears by letters or
figures in the first line or by ditto marks
or by dots in the following lines that The |
same class OF candidates received the same |
votes there can be no ground for rejection.
The word ditto and its abbreviatiOn to |
Il do" and dots are marks that stand for the |
word " ditto" are in common use, and have |
, perfectly well-detned meaning. known to |
persons generally. That meaning should be |
we answer the question in the |
affirmative.
Answer IL. We assume that the genuine |
ness OF the re turn referred to relates either |
% the signatures of the officers signing, or TO !
he alterations OF the return. The Governor
and Council have no power TO reject the |
returns on either ground, unless objection
n writing is presented TO them setting
'0rth that the signatures OF such officers,