National Republican., 1880-01-05


It is immatcriul whether tho aldermen re.
turned TO the Governor and Council the de-
tailed vOtO Of each ward separately, or
whether they returned the result of all
votes of all of tho wards for each can
didatc. Either mode is n satisfactory way of
reaching the same result. Substance only is
sought for IN such matters. Nor is It
material matter that instead Of returning all
the names Of the persons voted for, there Is
return of votes as scattering, provided that
however, such votes may be added or sub
stractcd when the same candidate or set OF
candidates appears to be chosen by n plurality
of tho votes thrown. The Governor and
Council cannot officially know, nor have they
the right to ascertain, that the votes returned rs
scattering were not actual ballots with the word
scattering" written thereon; nor is the cleo.
ton of the cnndiduies TO be chosen by plu-
raity of votes to be defeated because the
whole number of votes or ballots may be
stated crroneouslv or not stated at all. Tho
Constitution contains no such requirement.,
and the statutory provision requiring 1t Is
entirely unimportant and inapplicable to cases
where plurality of votes elects. 1t is well
settled rule of construction that where tho
general terms of n statute embrace several
subjects, but arc found TO be particularly ap.
pllcablc to some of the subjects aud not to the
others, II Is to DO construed as embracing
those subjects only to which it is particularly
applicable
Question 5.-Are returns from towns or
cities which arc not altered by the town or
city clerk valid within the same section2
Answer.-Roturus from towns and cities
which arc not attoste1 by town, plantation or
city clerk, are not valid. Tho attestation of
tho clorlI is prerequisite to any action OF the
Governor and Council in counting the votes
[65 Maine, $751; If, however the clerk should
bc absent Il clcrk pro tcmpore may bo chosen,
statute of 1877, C. II, and amendment thereof.
BY the act of 1874, Q. 1j0 the returns of such
clerk prO tenpore, or deputy clerk, are to
have the same force aud effect as if signed by
the clerk.
Question 6-IIave the Governor and Coun.
Gil n right TO reject the returns of the election
of members of tho legislature required by the
same section from tho officers of towns which
were not made, signed and scaled up in an
open town moetingP
Answor.--Thc Governor and Council must
act upon the returns forwarded to tho Sccro-
tary of State. If they purport to bo made,
signed aud sealed up in an open plantation or
town meeting thoy 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 to negative
facts therein sot forth. They, therefore, have
no such power. The statement Of the munich
pal officers is in that respect conclusive.
Question 7.-Is the return of two persons,
purpOrting to be sGloCtmcn Of Il town, valid
and sufficient evidence of the vote Of tho town,
when it appears that there were mt tho time
of the meeting, ut which the election was had,
but two selCCtmen of that town?
Angwer.-When majority of selectmen
are absent from meeting for election purposes,
or being present, neglect or refuse to act as
such, and TO do all duties required of them, the
voters at such meeting may choose as many
sGoctmen pro tempore as are necessary to com
plcte the numbcr competent to do the duties
-[R. 5. q. 4, section POI. In case Of death or
removal of all tho seleClmen two would be suf-
0cient and competent to act. The inquiry is,
if the return would be valid when there should
be but two selGctmCn "at the time of tho
meeting ut which the election was had" If
the other sclGCtmen had deceased prior to The
meeting the survivors might act and their
action would be legal. But tho canvassing
board arc to be governed by the returns
Evidence would not be admissible to prove
the fact that there wero but two scloctmcn in
the town. Tho Governor and Council cannot
officially know that there are only two.
Question S.-Can person who Is not cit
izcn of tho limited States ut tho time be legally
elected or constituted selcctman of II town.
Answer,-A person not q citizen may be
elected or constituted u sclectman SO that his
far as affects the public. Such one would bo
an officer de frc'o, and bo clothed with ap.
parent rights. His acts would bind tho town.
Il Dane rs. Derby, 81; Maine, 95.l
An officer de fdc,O is one who comes into
Office by color Oflegal appointment or election.
His acts in that capacity are as valid, so far as
the public Is concerned, as the acts of an OIL
Ger dc jUre. His title cannot be inquired into
collaterally. [Tho people rs. Cook Seldcn
SOL Tho precise dctiuition of an officer de
faeto observes Bigclow, @. j., in tho case of the
| FitChburg Railroad Company Gs. tho Grand
Junction and Depot Company II Allen SSH is
ono who comes in By forms Of law and acts
under a commission or election apparently
valid, but in consequence of some illcgality,
incapacity, or want of qualification is ncapa.
bio of holding tho Office. Indeed, there is an
entire unanilnity of opinion on this subject In
all States of the Union, but the fact of alienape
is not allowed TO bo proved. This was deter.
mined in the Frenchvlle case [5l Maine 5SOl
where 1t was shown that the clerk was IN
alien who could neither read nor write the
English language, and whore almost every
conceivable irregulHrity existed. Yet evi.
dcnce outside of the return was held inal-
lnissiblG, nor would such fact have any effect
| If it appeared in the return itself.
Question 9.-Ifa ballot has distinguishing
mark in the Judgment of the Governor aud
Council, such as would make it illegal undor
| the statutes, nave tnoy the authority TO d!Sro-
gard it in their asccrtanmont of what persons
appear TO be elected, when it appears by tho
official returns of tine officers Of the town that
such vote was received by tho selectmcn, sub
joct TO their objection, and its legality referred
to the Governor and council for deCision2
Answor.-The presiding officers arc to de-
| termino whether the ballot offered has dis.
tinguishing mark or figure SO that the re-
jcctod voter may procure ballet IL he chooses,
to which no exception can bo taken. II the
ballots have distinguishing marks or figures
it is no part OF the duty Of tho officers Of the
town to mnho q report in reference thereto.
They should reject the ballot ii offered when
it Is within the prohibition of the statute.
Tho statute prohibits the rejection of tho bal
lot after il is received into the ballot.box."
1t is then to be counted. The Governor aud
Council have nothing TO do with the question;
their duty is to count the votes, regardless of tho
fact improperly set forth in the returns They
arc nowhere constituted ~ tribunal with
judiciary authority to determine what shall
constitute a distinguishing mark or fsure, nor
can thoy legally refuse to open and count tho
votes rcturned,-[54 Maine, co., When the
ballot has been once received in tho ballot
box neither seIcctmen nor Governor aud
Council can refuse to count it.
4NfN