The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1880-08-13
claimed that the decision of

| bodies.
This is not so: The object Of all investiga-
| tons is to arrive at true results. The can
| wasting board so far as relates to County Com
| missioners are limited and restricted to what
| appears by the returns, except that by r. S. C.
| rs, 50, and c. 2l2 of the acts of 1876, "they
| may receive testimony on oath to prove that
| the return from any town does not agree with
| the record OF the votes of such town or the
number OF votes or the names of the persons
voted Tor and to prove which of them is cor
rect and the return when found to be erro-
| neous may be corrected by the record and
| the Governor and Council are required to
count and declare for any person all votes in
tentlonally cast for such person, although his
name on the ballot is mispeled or written
with only the initial or initials of his Christian
name or names; and they may hear testimony
| upon oath in relation to such votes in order TO
| get at the intention of the electors and decide
accordingly" But they are no where author
lZed to extend their inquiries beyond these
limts-to inquire into the validity of meetings
whether or not votes were cast by aliens or
minors or any OF the various questions nvol-
| wing the validity of the result Their iudg-
ment is not made conclusive. In case
OF senators and representatives, the final de-
termination rests with the senate and house.
SO IN reference to county officers, the Courts in
the last resort, must determine the rights of
the parties. Ii it were not so, if the canvass
| ing board erred in their computations-if they
should wilfully or ignorantly disregard the
law-reJecting legal and valid returns and re-
| ceiving and acting upon illegal and invalid re-
turns, there would be no remedy for the party
duly elected. IF" says the Court, sin their
opinion, 20 Maine $40, the legislature had
deemed it expedent. and had actually intend
| ed to constitute the Governor and Council
Judges generally of the election of the county
officers, it would have been easy for them to
have been explicit to that effect; not having
done SO, 1t must be presumed that nothing of
the kind was intended" 1t is abundantly OBJ
vlous this must be so, since the right of full
investigation is withheld from them.
| County commissioners hold their Office by
| popular election. If one not legally elected
! is enormously declared to beselected, the will
of the people is disregarded. An usurper
holds an office to which he has no right 1.-The
usurpation of an office is not an invasion of
| executive prerogative," observes Mott j. in
| State V. Deliesseline, 1 McCord 81, "but of
| the rights OF the people; and the emily method
| by which these rights can be protected, is
through the instrumentality of the Courts of
| Justice
In accordance with these views it has been
uniformly held by this and all other courts
| where the question has arisen, that the decis
Ion OF the canvaSsing board is only priIna fdcie
| evidence, that the real title to an office de-
| ponds upon the votes cast, and that the tribu-
| nal before which the question arises will in
| vestigate the facts of the election, the votes
cast, and the legality Of the action of the cam
wasting board: People V. Cook, s N. Y. 81;
v.
or, Dutch 34S: People v. Judson, IS N. Y
| 525. The series of opinions of this court from
that IN % Maine 56S, to the present, concur
| in the conclusion that the action of the Gov
ernor and Council, so far as relates to all mat
tiers pertaining to the case under consideration,
in canvassing the returns, is purely ministerial,
and is to be confined strictly within the bounds
OF the constitution and the statutes enacted in
| furtherance of the constitution
The underlying principle is that the election
pAty &c g Al.
| right to an elective office, and hence it has
been held competent to go behind the ballot
box, and purge the returns by proof that votes
were received and counted, which were cast by
persons not qualified to vote. People v. Pease,
u N. Y. 45. Freedom of inquiry in investigate
| ing the title to Office observes Andrews, J.
| in People v. Judson, So n. Y 531, tends to
secure fairness in the conduct of elections,
falthfulness and integrity on the part of re-
| turning officers, and it weakens the motive to
fraud or violence by diminishing the chances
that they may prove successful in effecting
the objects for which they are usually en-
ployed."
(9 The ground is taken 'sthat the vote of
the city OF Portland was rightly rejected as il
| legal by the Governor and Council, the return
thereof not being in accordance with the stat
ute, in that it did not contain the names of all
the candidates voted for with the number of
| votes set against them.''
1t is conceded that if the vote of Portland is
| to be counted, the plaintiff was duly elected
| The whole number of votes cast was six thou
sand three hundred and thirteen, of which
two were returned as scattering.
None OF the votes of the CITY of Portland
| were counted. They were all thrown out.
| why? Because the ward meetings were not
| regularly notified? Because the ward meet
| ings were not legally organized? Because
| those not qualified electors were permitted to
| vote? Because there was fraud or intimida-
ton at the meeting? Because the votes of
| quallhed voters were rejected? Because the
| votes were not received, Sorted counted and
declared in open ward meeting? Because
lair record OF the result was not seasonably
made? Because the returns duly sealed and
| attested Were not transmitted 10 the Secretary
| OF State within the time required? Because
| OF any 1nformality, great or small? No None
OF these causes We're pretended-much less
proVed-but because of the number of votes
cast two W. re returned as scattering; that is,
because two wrote scattering on their ballots,
Or because two voted for candidates not voted
Tor by anybody else, and the clerk returned
them as scattering instead of giving the names
| OF persons for whom the votes were cast. Thus
and for such cause 63l1 voters, being over a
third of the voters of the county of Cumberland,
were DISTINGUISHED they were equally dis
tranehsed whether they voted for one candi-
date or the other. This disfranchisement was
for no neglect or omission of theirs.
This is government of the people. Their
will as expressed by the ballot is what is to be
aseertained and declared. To disfranchise
b,3ll voters because two ballots were returned
as scattering, is novel mode of gi wing express
sion to the popular will. If the citizens voting
can have their votes nullifed for such cause,
any voter by writing scattering" on his bal
lot or any clerk by returning a vote or votes
under this head, may annihilate majority
however large. No man can be sure his vote
will be effective.
The word scattering" written on a ballot
indicates the name of an individual or it does
not. Ii a name then it should be counted. If
it is not the name of an individual. then per-
haps 1T may be regarded blank vote. 1t
Is, at any rate, ballot. 1t is provided by r..
5. G. S32, as amended by c. 212 of the acts of
1878; that lin order to determine the result of
any election by ballot, the number of persons
who voted at such election, shall first be ascer-
tanned by counting the acho!e number of bal
lots given ill., which shall be distinctly stated
and recorded" The achole number ballots
counted, including the votes returned scatter
ing, the petitioner was most assuredly elected;
Tor In the case under consideration these votes
however added or subtracted, would not have
changed the result.
The office of County Commissioner is one
created by the statute, not by the Constitution
AS canvassing board, the Governor and
council act I'D relation to his Office under r. S.
CTS, 5 8, as amended by C. 212 of the acts Of
1878, and by that act the aolole number of bal
lots given should have been counted. Had
they been SO counted the plaintiffs election
was assured.
ANA'N Ooe@i'io
tion is not to be set aside and declared void
merely because certain illegal votes were re-
ceived, which do not change the result of the
election. The People V. Tuthill and others,
81 n. Y. $50. Judkens V. Hill, 80 N. H. 40
School District v. Gibbs, Cush 80. In ca
pdrte Murphy, Cow. 153, two ballots were
put in the box on the names of two persons
who were formerly voters, bat who had died
some weeks before the election. ITO warrant
the setting aside the election the Court OBJ
serves, lit must appear affirmatively, that the
successful ticket received number of improper
votes, which if rejected, would have brought
it down to minority. The ere circumstance
that improper votes were received, will not
vitiate an election The extra vote should
never be rejected, when it is possible to ascer-
tain the fraudulent vote: Mann V. Cassiday
Brewster CPenn) 80. In an action to deter
mine the right to an office, the Court may
look beyond the returns and even the ballot
boxes. if necessary, to ascertain the truth. The
People v. Cook, IA Barb. 259.
Now there is no allegation whatever that il
legal or fraudulent votes were cast. Whether
the votes returned as scattering were cast by
persons not authorized to vote, or fraudulenty
cast. or for candidate Ineligible, or erroneous
ly returned as scattering by mistake or fraud,
inasmuch as they did not change the result,
the petitioner having a plurality of over six
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