, 1880-01-04

PRICE FIVE CENTS. !:
If the other Se1ectmen had deceased prior to
the meeting, survivors might act, and. their
action would be legal. But the Canrassing
Board are to be 80,
GOVERNED By THE RETURNS, RI: !.
Evidence would not be admissible toprove
the fact that there were but two Selectmen Of
the town, The Governor and Council cannot
officially know there are only two.
| Question 6-Can person who is not
citizen Of the United States at the time be-
legally elected or constituted the Selectman
Of 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 an
one would be an officer de fncto.
and clothed with apparent right His acts
would bind the town. [Dane rs. Derby 81
Me., 95] An officer de, fdcto Is one who
comes into office by color Of legal appoint
| ment or election His acts In that capacity
are as valid, rs far as the public Is concerned,
as the acts Of an officer de j,trc His title
CANNOT BE INQUIRED INTO
collaterally. 1.-THE People vs.. Cook, / Se1den,
S9.] "Precise definition Of an officer de-
facto," observes Bigelow, G. j.: in Fitch
burg Railroad Company vs. Grand Junction
& Depot Company, Allen, 557, is one who.
comes in by forms of law, and acts under
commission or election apparently valid.
but in consequence Of some ,illegality.
1ncapaclty, or want OF qualification is
incapable Of holding office. Indeed, there is
entire unanimity Of opinion on: this subject
In all the States of the Union where this
question has arisen, as we'll as in Courts OF
the United States, but the fact Of alien
age is not allowed to be proved.
This was determined in the French
vile case [64 Maine, 1881, where
it 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 the evidence outsidol
OF the returns was held 1nadmissab1e, nor
would such fact have any effect If It ap-
peared in any by the return itself.
Question 9-H 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 disregard it in their ascertainment Of what
persons appear to be elected, where 1t ap-
pears by the official returns Of the officers Of:
the town that such vote was received by the
Selectmen subject to their objection, and It's
legality referred to the Governor and Council
for decision?
Answer-The presiding officers are to de-
termine whether the ballot offered has dis
tinguishfng mark or figure so that il rejected
the voter may procure the ballot it ho
chooses, to which no exception can be taken.,
but if ballots have distinguishing marks or
figures it is no part Of the duty of the officers
Of the town to make any report or ref
erence thereto. They should reject the
ballot if offered where 1t is within
the prohibition Of the statute. The statute ,
prohibits the rejection Of ballot "after it IS
received into the ba1lot-box..,' It is
. THEN TO BE COUNTED.
The Governor and Council have nothing ta
do with the question Their duty Is to count
the vote regardless OF the fact improperly set
forth in the returns. They are no.
where constituted a tribunal with Judi
cial authority to determine what shall
constitute a: distinguishing. mark or figure,
nor can they legally refuse to open and count
the votes returned. Isl. Maine, 603) When
a ballot has been once. received In a ballot
box neither the Se1ectmen nor Governor and
Council can refuse to count it. - ::
Question 10-If the names Of persons ap-
pear in the return without any number Of
votes being stated, carried out against them
either in words or figures, is it. the dutyof
the Governor and Council to treat those per-
sons as having the same number Of votes as
another person received for the same office,
and whose name is placed first In the return,
it they find dots under the figures or words
set against such other persons nama?' ~
Answer-H little marks. or 1ots are placed
under the figureaor words OF the first candl-
dates vote returns should be counted
where it appears by the letters OF figures In
the first line, and by ditto marks or by dots
in the following lines, that the same class Of
candidates received the same vote. There
can be no ground for the rejection OF the
word ditto and its abbreviation "do." and
dots or marks that stand for the word ditto
are Of common use, and have perfectly
meahing known to- persons
generally That meaning should not be dis
regarded. We answer the question in the
Affirmative
Question n-Have the Governor and Coun-
iii the legal right to decide what kind of evt-
lence they will receive, and what mode OF
before them shall be to enable
them to determine the gcnuineness OF, re- !,
:urns required by the article and section OF
he Constitution above mentioned?
Answer-We assume that the "genuine-
hess of the return u referred to relates either
% the signatures of. the officers signing orto
lie alterations of returns. The Governor
md Council have
NO POWER TO REJECT RETURNS
IN either ground, unless an objection In
writing Is presented to them setting forth
hat the signatures Of such officers Tor
'ome one of them) are not genuine, or
hat the return has been altered after It was
igned. Then notice thereof should be given
o all persons interested, and where adj
upon the facts the Coy
.rnor and Council should be govern
ID in the admission Of evidence by tbs
With the law Of this State. The witnesses
hou1d be duly sworn that they may
,e punishable for the crime. OF per-
ury if they wilfu1ly and corruptly testi-
Il have no right, to. reject returns
or such cause without giving the parties In
crested therein a fair opportunity to be-
card. The genuineness OF the return In
hese particulars IS to be presumed, and this
remains until overcome By eyf-
ence produced as before said.
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