Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-01-04

if the returns from a city having i've or seven
aldermen is signed by three, then 1T must be d
valid and les al It turn because Only four may
have been present, and in such case three, be-
ing majority of those present, could act legal
". though the fourth should oppose their &C
ton and refuse to join them. When such a
return is laid before the governor and council
they cannot know and they have no right to as
sumo that the return is not valid. 1t Is the duty
of aldermen to be in sessionEand examine the
ward returns compare and declare the votes,
and of the clelk to make a record thereof
From that record, certified copy of which Is
returned, the law presumes that quorum OF
aldermen was present. The law with respect
to quorum and majority is correctly stated In
Danes abridgment, $50, and Dillon's NUM-
cipal corporation sections 2l6 and 21I. In
the latter " ork it is said, bodies composed of =
definite number, act by majorities of those
present, provided those present constitute
majority of the whole number. To use MIR.
Danes illustration, IF body consists of twelve
councilmen seven is the least number that can
constitute valid meeting, though four of the
seven may act, and far Gs we are
aware the law lis SO stated in substance
by all ancient and modern authorities. The
rule applicable TO such cases Is similar to that
which applies to our house of representatives.
The whole number of representatives estab-
Iished by law is Isl. A majority of that is 16
business. If there is actually that number
present and majority, thep-that Is 80 MEM
bers-vote in the affirmative, valid law can
thereby be enacted or other BUSINESS trans
acted If less than IS members are present
then no business can be done except to ad-
iourn or compel the attendance OF absent
members. This is q familiar law, and Illus
trates the principle applicable to the aldermen
of cities, and shows why and how return
signed by less than a majority of the whole
number may be, and so far as the governors
council are concerned is, conclusively pre-
sumed to be valid. They have no right go be-
hind the returns.
Question-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 members in any one OF
the several wards of such city, valid return
within the requirements of the same section?
Answer-We are not sure that we comprehend
the full scope of this question. Our answer
will meet all of its supposed purposes. 1t Is
immaterial whether the aldermen returned to
the governors council detailed vote of
each ward separately, or whether they re-
turned the result of all votes of all
wards for each candidate together. Either
mode is satisfactory way of reaching
the same result. The substance only is sought
for in such matters. Nor is it a material mat
ter that instead of returning all the names of
all persons voted for, there Is returns OF votes
as scattering, provided that, however, such
votes Lay be added or substracted. Some
candidates or set of candidates appear to be
chosen by plurality of the votes thrown.
The governor and council cannot officially
know, nor 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 to be
chosen by plurality of votes to be defeated
because the whole number of votes or ballots
may be stated enormously or not stated at
all. The constitution contains no such re-
quirement, the statutory provision re-
quiring it is essentially. entirely
unimportant and inapplicable to cases where
plurality of votes elected. 1t is we'll set
tied rule of the constitution that where the gen.
eral terms of the statute embrace several sub
jects, but are found to be practically applicable
to some of the subjects and not to Others, it is
to be construed as embracing those subjects
only to which it is practically applicable.
QUESTIONABLE returns from towns or
cities which are not attested by the town or
city clerk valid under the same section?
Answer-Returns from towns and cities
which are not attested by 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 votes 9th
absent, clerk pro tempore may be chosen, as a
deputy clerk may be appointed under the sta
tute of 1877 (chapter y, and amended thereof.
BY the act of 1874 (chapter 1881 the returns of
such clerk pro teinDOTe or deputy clerk are to
have the same force and effect as Il signed by
the clerks.
Question-Have the governors council
right to reject returns of the election
of members of towns which were not made,
signed or sealed up in open town meetings?
Answer-The governors council must act
up N the returns forwarded to the secretary OF
State if they purport to be made, signed,
sealed upon open plantation or town meeting.
They constitute the cases of action of the can
vassing 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 of the negative facts therein
set forth. They therefore have no such power.
The statement of the municipal officers is in
that respect exclusive
Question-Is the return of two persons pur-
porting to be selectmen of town valid and
sufficient evidence of the vote of town, when
it appears there were at the time of the meet.
ing at which the election was had, but two Sc
lectmen,
Answer-When a ajority of selectmen are
absent from the meeting for election purposes,
OF being present, neglect or refuse to act as
such and to do all the duties required of them,
the voters at such meeting may choose so many
selectmen pro tenn. as are necessary, as to COM
plete the number competent to do the duties.
(Revised statutes, chapter 4, section 20). In
case of the death or removal of all the select
men, two would be sufficient and competent to
act. The inquiry is if the return would be
valid when there should be but two selectmen
at the time of the meeting at which the cleo
ton was held. 1t other selectmen had deceased
prior to the meeting, the survivors might act,
and their action would be legal, but canvassing
would not be admissible to prove the fact that
there were but two selectmen of the town. The
governors council cannot officially know there
are only two.
Question Can person who is not a citi-
zen of the United States at the time be legally
elected or constituted selectman of town?
Answer-A person not citizen may be
elected or constituted seectman so that his
official acts bind the town, and are valid SO far
as affects the public. Such alone would
be an officer de fdcto, and clothed with appare mt
right. his acts would bind the town. Dane VS..
Derby, 81 Maine, 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
valid as far as the public is concerned as the
acts of officers de .jure. His title cannot be en-
quired into collaterally. CThe people vs. Cook,
Selden. S9). The precise definition of an
officer de .tdcto, observes Bigelow C. j.. in
the Fitchburg Railroad Company VS.. Grand
Junction and Depot Co., Allen, 557, is one
who comes in by the forms of law and acts
under commission, an election apparently
]