Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1880-01-07

candidates appear to be chosen by Plu'
ralily of the votes thrown. The governor
and council cannot officially know, nor
have they a right to ascertain, lnat Nntes
returned as scattering were not the actua'
ballots with the word scattering written
thereon. Nor is the election of Candidates
to he chosen by plurality of votes, TO De
defeated because the whole number OF votes
or ballots may be'staled enormously or not
stated at all. The constitution contains
no such requirement and statutory pro,
vision. Requiring it Is unimportant ana
inapplcable to the cases where plurality
Of votes elects. Il is II well settled rule
of construction that where the general
terms of a statute embrace several sunJects
but are found to be practically applicable
to some of the subjects, and not to others
it is construed Us embracing those sub
iects only to which it is practically appli'
capable.
Question ). Are returns from towns or
cities which are not attested by town or
city clerk valid within the same section?
Answer. The returns from towns and
cities which are not attestel by the town,
plantation or city clerk are not valid. The
attestation of clerk is a prerequisite to
any action of the governor and council in
counting the votes (6S Mtine, 5SS). If,
however, the clerk be absent, 4 clerk pro
tempore may be chosen or II deputy clerk
may be appointed under the statute OF
1877 and the amendment thereof by the
act of 1879. The returns of such clerk
pro tcmpore or deputy clerk are to have
the same force and effect rs if signed by
the clerk.
Question e. Have the governor and
council right to reject the returns OF
election of members Of the legislature,
required by the same sec ion, from officers
of towns which were not made, signed or
sealed up in open town meeting?
Answer. The governor and council
must act upon the returns forwarded to
the secretary Of state. If they purport to
be made, or signed, sealed AM made up
in open plantation OF town meeting, they
constitute the basis of action b. the cam
wasting board. No provision is found in
the consti ution Or in any statute of this
state by virtue of which they would be
authorized to receive evidence to gltive
the facts therein set forth. They, therefore,
have no such power. The statement of the
municipal officers is in that respect con-
elusive.
Question Z. Is the return of two persons,
purporting to be sclectmen of u town,
valid and sufficient evidence of the vote OF
The town when it appears that there were
ut the same time of the meeting at which
the election was had but two seleclmen Of
| that town?
| Answer. When a majority of seectmen
are absent from meeting for election
purposes, or being present, neglect or
refuse to act us such. and to do all the du-
ties required of them, voters at such II
meeting my choose SO many selectmen
pro tempore rs are necessary to complete
the number competent to do their duties -
Revised statutes, chapter 4, section 20. In
case of death or the removal of all the
selectmen, two would be sufficient and
competent to act. The inquiry is, if the
return would be valid when there should
be but two selectmen, " ut the time of TIN,
meeting at which the election was hadp'
If other selectmen had deceased prior to
the meeting. the survivors might act, ana
their action would be legal But the can
wasting board are to be governed by the
returns, and other evidence would not be
admissible to prove the fact that there
were but two seectmen of the town. The
governor and council cannot officially
know that there are only two.
| Question 8. Can any person who is not
u citizen of the United States ut the time
be legally elected or constituted select.
man of II town?
A person not Il citizen may be elected
or constituted Il selertman so that his Off
cial acts bind the town md are valid 81
far as affects the nY'''n, Such a one
would be i'm officer IL t,tcto, and clothed
with apparent right. His acts would bind
the town (Dlne vs.. Dane, 81 Maine 95)
An officer dc tttc;o is one who comes into
office by color OF II legal appointment OF
election. Ills acts in that capacity arc rs
valid, SO far us the public is concerned, us
the acts OF an off 'er &c iUre. His title
cannot be inquired into collrterally. (Tht
People VS. Cook, 4 Selden S9) "Tht
precise definition of IN officer de ftc,o, :"
observes Bigelow. chief justice. in Fitch
burg railroad company vs.. Grand June
ton and Depot company, Allen 5j7, lis
one who comes in by the forms of law and
acts under commission or election ap
parcntly valid, but, IN consequence o,
some Illegally, incapacity or want oil
qualification. is incapable of holding the
Office Indeed, Their. is IN entire una
nimity Of opinion on this subject in all the
states OF the Union where this question
has arisen, rs well rs the courts of the
United States. But the flcts of alienaoe
are not allowed to be proved. This wls
determined in the Frenchville case (64
Maine $500 where it was shown that ib,
clerk was in alien who could neither read
nor write the English language, and
where almost every conceivable Irregular.
ity existed, vet evidence outside of the
returns was held inalmissible Nor wouli
such fact have any effect if it appeared in
any case by the return itself.
Question 9. If ballot has distin
gushing mark. in the judgment of gov.
ernor and council, such rs would make il
illegal under the statutes, have they au
thority TO disregard it in their ascertain
ment of what persons appear TO be elected
where it appears by the official returns @
the officers of the town that such vote was
received by the Selcctmen subject to thei,
objection and its legality referred to th,
governor and council for dec~ionp
Answer The presiding officers are tc
determine whether the ballot offered has {
Distinguishing mark or figure, so that i
rejected voter may procure II ballot if he
chooses, to which no exception can bt
taken; but if the ballots have distinguish
: ing marks or figures it 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 prohibition of the statute
The statute prohibits the rejection of the
ballot after it is received into the ballo
box" 1t is then to be counted. The gov
ernor and council have nothing to do will
} the question. Their duty is to count the
votes regardless of the fact improperly
, set forth in the returns. They are no
| where constituted IL tribunal with iudicia
authority 10 determine what shall conSti
! tute Il distinguishing mark or figure. No
can they legally refuse to open an,
, count the votes returned Isl Maine 6O2
When the ballot has been once received
in the ballot box, neither selectmen no
governor aud council can refuse to coun
, it,
: Question TO- If the names of person
appear in the return without any humble