Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1880-01-07
Supreme Court vs.. GarcelOn.
FULL TEXT OF TUE DECISION IN ANswE
TO THE GOVERNORS QUESTIONS.

council decide that there is no return from
city on which representatives can b.
summoned. TO attend and take their seat
in the legislature, it is their duty to orde
a new election, or is it competent for tn
, House of Representatives, if it shall APP
pear that there was an election of sucl
representatives in fact. to admit them Il
seats, though no return thereof was mad,
and delivered into the office of tho secre
tary of state?
Answer. No authority is given TO the
governor and council, when there is NJ
return, to order new election. When tn
seat of u representative has been vacated
by death, resignation or otherwise, prOvi
sion is made by the revised statutes
chapter 1 sections SO, Il and AZ, for TIL
filling of existing vacancies. BY theS,
provisions, whenever the municipal Off
GERS therein mentioned, by any means
have knowledge of the death of repre-
sentative elect, or of vacancy caused il
any other way, it is their duty to order !
new election. If it appears to the Hous'
of Representatives that there was an cleo
ton Of representatives in fact, they shoulC
admit them to their seats, though no re
state. A representative is not to be de
prived Of his rights because municipa
officers have neglected. their duty.
Question 2. Is it competent for the gov
crnor and council to allow the substitution
of other evidence in place of "the returned
copies of snch lists" us provided for il
article 4, part l, section of the constitu
ton, to enable them to determine wha
persons appear TO be elected y represen
tatives to the Legislature by = plurality
of all the votes returned?"
Answer. This refers 10 the substitution
authorized by the act Of 1877. The con
slitution calls for Il return that is regular
| in its essential forms, and which truly
represents the facts to be described by it
but much of the constitutional require
ment is directory merely. 1t does not ain
ut depriving people of the right of suffrage
or Of their right of representation fol
formal errors; but aims at avoiding such
\ result where the constitutional require
ment has not been fully, or has been de-
fectively executed by the town officers
1t is in aid of this constitutional provision
to supply omissions or deficiencies rs
nearly and us correctly rs may be, anC
such Is the purpose of this statute. 1t i:
competent for the governor and council tc
allow an erroneous return, or one that i
informal and defective, to be aided AM
corrected by an attested copy of the record
rs by statute provided. The object of the
constitutional provisions respecting cleo
tions is to furnish us many safeguards rs
may be against II failure, either through
fr nj r. ,1x TO
tain and declare the will of the people n:
expressed in choosing their officers and
legislators. Hence the requirement thai
not only shall returns be made on the spo
in open town meeting, but that u record o
the votes shall be male ut the same time
and authenticated. la like manner, if by
accident or wi!ful neglect there is an error
or omission in the return, VIII It can be
safer than to refer to the duplicate state
ment in the record to correct it? This the
statute of 1877 allows to be done, anC
while the language is permissive, it fall;
within the well known legal rule that
when public rights are concerned it shall
be construed us mandatory. command
clothed in the language Of courtesy, 81
clothed because it could not be doubted
that high and honorable officials woul,
unhestatingly avail themselves of al
lawful means to declare the result of al
election according to the actual fact il
obedience to the fundamental principles o
popular government. The governor an,
council are bound by this statute. 1t i
mandatory upon them; it imposes duty
tn the pnblic that must be performed
Whether the act referred to contravene'
the constitution in allowing oral evidence
to show the intention of voters in casting
their woes is another part of the statute
which we are not now called upon t
consider. If unconstitutional in the latte
respect that would not effect the constitu
lionaIity of the other separate AND
Independent provision.
Question 3 Is IL return signed by les
than m1jorlty of the selectmen OLA tow
or the aldermen of IL city valid within the
requirements of the same section?
Answer. To this question we answer
that while IL town may legally elect IL!
many us seven selectmen, the well known
practice is 10 elect only three, and in suc'
cases II retnrn to be valid must he signet
by Il minority of them, because by M
possibility can II less number constitute q
quorum; bat the rule is otherwise with
respect to the aldermen of cities. Most o
our cities are required by law 10 have n
many as seven aldermen, and none o
them, we believe, have less than five
70 constitute Il quorum it is only necessa
~ to have majority Of the whole numbe
present, and when such Il quorum is pres
ent, Il majority of quorum may do bust
ness. Surprising the number to be seven
four would constitute II legal quorum and
three being II majority, that quorum coul'
legally act although the fourth SHOULD
refuse to join them or should oppose thei
action. Consequently, if Il return from
city having five OF seven aldermen l.
signed by three of them, it may be vall'
and legal return, because only four may
have been present and in such case tire
(being a majority Of those present) coul'
legally act, although .the fourth shoul'
oppose their action and refuse to join them
| When such II return is laid before tin
governor and council they cannot know
and they have no right to assume that tn
return is not valid. 1t is the duty of tn
aldermen to be in session and to examin
the ward returns, compare and declar
the votes, and, with the assistance of
clerk, to make record thereof. From
that record, certified copy of which i
returned, the law presumes that II quorum
of aldermen was present. The law wit
respect to II quorum and majorities
correctly stated in Danes Abridgemen,
page 100, and Dillon's Municipal Corpor
ations, sections ZIG and 2l7. In the latte
work it is said that bodies composed of
definite number act by majority of thos
present, provided those present constitut
II majority of the whole number; or to us
Mr.. Danes illustration, if the body consist
Of twelve councimeu, seven is the leas
nnmber that can constitute valid meet
ing, though four of the seven NAV act
and, SO fur us we are aware, the law is S
stated in substance by all ancient an
modern authorities. The rule applicabl
to such cases is similar to that whic
applies to our House of Representative.
The whole number of representative
established by law is one hundred an
fity.one. A majority. that is, seventy 81
members, constitutes II quorum to do bus
ness; if there is actually that humble
present,and if II majority of them. that i,
thirty-nine members, vote in the affirmativ
IL valid law can thereby be enacted,or othe
business transacted. If less than seventy