The Portland daily press., 1880-01-17

a member The language of the Court touching the
power of the Houses to compel the attendance OF
their members lin the Constitutional opinion given
in So Maine, 563.) applies only to those who, with
out vacating their seats, absent themselves from
the sessions of the body to which they were elected
1t would be alikecontrary to the spirit of our Con-
stituton andg detrimental to public policy to hold
that man niiaht be compelled to accept office of
such character. We therefore answer the question
in the negative.
Question 27.
27. In case the official returns of the vote
cast for Governor should be lost, concealed or
inaccessible by accident or fraud is it compe-
tent to &C ut the votes for Governor by using
certified copies of the official record OF the
several cities, towns and plantations in the
State?
Ans.-In our recent answer to questions prese MT
ed by the Governor said in substance that one of
the objects of the constitutional requirements of
record of the vote, to be made at the time and
authenticated in like manner with the return, was
to guard against the possible result of mistake acct
dent fraud in the official return of votes When
such returns of the vote for Governor lost con-
cealed or inaccessible by accident fraud, the re-
f fsined bv 'iG using Certified COPIES Of the Of
fetal records mentioned in the question.
Neither the carelessness nor the turpitude of the
officers charged with the making or the custody OF
the returns be suffered to defeat the will of the
people as expressed in the election so long as the
Legislature can ascertain it from the records thus
made. True, the constitution provides that the Sec
rotary of State shall on the first wednesday of JAN
uary lay the lists before the Senate and House OF
Representatives, Dub tn1S provision is directory anu
a failure to comply with it cannot defeat the right
of the Legislature to ascertain and declare the re-
suit of the election. When the trainers of our con-
stituton and legislators have taken such pains
to perpetuate the evidence of votes cast and to
guard that evidence against the effect, not only OF
accident, but of human fallibity or peridity it is
not to be thrown away because the Secretary of
State fails is unable to comply with this direc-
tion The constitution is to be construed when prac-
ticable in all its parts not to thwart but
TO advance its main object the continuance and Or
derby conduct of the government by the people. We
answer the question IN the affirmative.
The questions before are attested in the usual
mode and purport 10 come from organized bodies.
They are of the utmost Importance. Our answers
are entirely based the assumption of the exist
decline an answer if we would.
In a case like the present, the remarks of Chief
Justice Marshall in Cohens Virginia, par
ticuarly applicable. at is most true" he says,
| it should not, but it is equally true that
it must take jurisdiction if it should The
Judiciary cannot, as the Legislature may, avoid q
measure because it approaches the confines of the
constitution. We cannot pass it by because 1t IS
doubtful With whatever doubts or whatever diff
| culties may be attended, we must decide it,
| if it be brought before US. We have more right
decline the exercise of jurisdiction which g given
than to usurp that which is not given. The one OF
| the other would be treason to the constitution.
Questions may occur which we would gladly avoid,
| but cannot avoid them"
| JOHN APPLETON,
CHARLES W. WALTON,
WILLIAM G. BARRows,
CHARLES DANFORTH,
| JOHN A. PETERS,
ARTEMAs LIBBEY,
JOSEPH w. SYMoNDS.
| To JOSEPH A. LOCKE, President of the Senate, and
GEORGE WEEKS, Speaker of the House of Repre-
sentatives Augusta, Maine.