The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1880-01-06
TELEGRAPHIC,
MAINE
The Supreme Court Knocks
the UnderpiDDing From
GarcelOn.
No Law for the Fraud to Hang
Upon.

answers of the Msine supreme court
the questions submitted by Governor Gar
celon. The first part of the answer wa
published in Sundays HERALD, bat tn
following was not received in time 70
that issue.-EDs.l
Bangor, 3.-Is it competent for the gov
ernor and council to allow the substitu
ton of other evidence in place of ''tht
returned copies of such lists" as are pro
vided for in article 4, part 1st, section 8
of the constitution, 10 enable them to de-
termine Whist persons "appear ID be
elected" representatives to the legislature
by plurality OF all the votes returned.
AnsWer.-This refers TO the substitution
authorized by the act OF II, c. 2I2
The constitution calls for a return that
is regular in essential forms, and which
truly represents the facts to be described
| by it. But much OF the constitutional re-
quirement is directory merely. 1t does
not aim at depriving the peop'e OF their
right of suffrage, or of their right of Iepre.
sentstion for formal errors; but aims at
avoiding such result. Where a constiiu-
tional requirement has not been fully or
been effectively executed by town Off
GERS, it is in a.d of the constitutional
provision to supply the omission
or deficiency IS nearly and as correctly
as may be. Such is the purpose
Of the statute. 1t is competent for the
governor and council TO allow an ernone-
Gus return or one that is informal or de-
fective to be aided and corrected by an
attested copy of the record, as by statute
provided. The object of the constitu-
tional provisions respecting elections, is to
| furnish as many safeguards as may be
against the failure, either through fraud
1 -N,l- 14l-
declare the will of the people, as ex-
pressed in the choice of their officers and
| legislators. Hencs the requirement that
not only shall returns be made on the
| spot in open town meeting, but 9
record of the vote shall be made
at the ssme time and authenticated
in like manner. If by accident or will
full neglect there is an error or omission
in the returns, what can be safer than to
refer 10 the duplicate statement by record
| than to correct it. This the statute Of 1877
allows to be done, and while the language
is permissive, it falls within the we'll
known legsl rule, that when public rights
are concerned it shall be construed as
mandatory, a command clothed in the
| language of courtesy, so clothed because
it could not be doubted that high and
| honorable officials would unhestatingly
avail themselves of all lawful means 10 de-
clare the result of an election according
to actual fact, in obedience 10 the funda.
mental principals popular government.
| The governor and council are bound by
the statute. 1t is mandatory upon them,
it imposes a duty to the public that must
| be performed. Whether the act referred
to contravenes the constitution in allow
ing oral evidence to be received to show
/ the intention of voters in casting their
votes is another part of the statute which
we ara now called upon to consider. If
unconstitutional in the latter respect, that
would not affect the constitutionality of
the other separate and Independent pro
vision.
Question Three-Is return signed by
less than a majority of the selectmen of
the town or aldermen of the city valid
within the requirements of the same
section? Answer to this question: We an
swer that while town may legally elect
as many ss seven selectmen, the well
known practice is to elect only three, and
in such cases, return TO be valid must be
signed by msjority of them, because by
no possibility can a less number consti-
tute legal quorum. But the rule is
otherwise with respect 10 aldermen of
cities. Most of our cities are required by
law to have as many as seven aldermen.
and none of them, We boli1ye, nave less
than FIVE To constitute quorum, it's
only necessary to have a majority ofthe
whole number present, and when such
quorum is present q majority Of the
quorum may do business. Surprising the
number TO be seven, four would con stitute
legal quorum and three being
majority of that quorum could legally
act, although the fourth should refuse to
join them or should oppose their action.
Consequently if return from a city hay
ing five or seven aldermen is signed by
three of them, it may be valid and
legal return, because only four of them
may have been present; and in such case
three (being a majority Of those present.
could legally act, although the fourth
should oppose their acton aud refuse to
join them. When such return is laid
before the governor and council they can
not and they have no right 10 assume
that the return is not valid. 1t is the |
duty of the aldermen TO be in session and |
examine wsrd returns, compare and de- |
clare the votes and Of the clerk to make |
a record thereof; from thst record Ger
titled copy of which is returned, the law
presumes a quorum of aldermen was pre-
n
TO the effect that bodies composed of de-
finite number act by msiorities of those
present, provided those present |
whole number; If body consists of !
twelve councilme1, seven is the lesst |
number that can constitute valid meet /
ing, though four of the seven may act, |
ard so far as we are aware the law is so |
stated in substance by all ancient and |
modern authorities. The rule applicable |
10 ouch cases is similar to that which sp-
lies 10 our House of Representative. |
The whole number of representatives es-
tablished by law is ISL. a majority, |
that is, seventy six members constitute q |
quorum 10 Go business. If there is ac-
tually that number pres cnt and a ma
jority THAT is, thirty-nine members) vote
in the affirmative, valid law can thereby |
be enacted, or other business transacted, |
If less than seventy-six members are
present, then no business can be done,
except to adjourn or compel the attend
ance of absent members 1his.is fsmil-
lar law and illustrates the principle appli.
cable 10 aldermen of cities, and shows
how, and why, return signed by less
than a majority Of the whole number
may be, and so far as the governor and
council are concerned, is conclusively
presumed to be valid. They have no
right to go behind the return.
Question Four - Is a return by the
aldermen Of city which does not give
the number of votes cast for each person
voted for as member of the legislature,
and does not show what persons were
voted for as such member in shy one of
the several wards of such city, valid
return within the requirements Of the
said section Answer-We are not sure
that we comprehend the full scope of this
question. Our answer will meet all ofits
supposed purposes. 1t is immaterial
whether the aldermen returned to the
Governor and council detailed vote of
each ward separately or whether they
returned the result of all the votes of all
the wards, for each candidate together.
Either mode il q satisfactory way of
Tesching the same result. The substance
only is sought for in such matters. Nor
is if material matter, that instead Of
returning all the names of persons Yoted
for there is a return of votes as scattering,
proyided that, however, such votes may be
added or subtracted, the same candidate
or set of candidates appear 10 be chosen
by plurality of the votes thrown The
governor and council cannot officially
| Know, or have they the right TO
ascertain, that the votes returned as
scattering, were not actual ballots with
the word scattering" written thereon,
nor is the election of candidates &c be
chosen by plurality of the votes to be