Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1880-01-05
The MAINE BUSINESS.
Various Points Decided by the
Supreme Court.
THEGOVERNOR'S ACTS UNLAWFUL.
Countersign Needed to Enter the
State House.
DISPATCHES OF SATURDAY AND sUNDAYl

DISPATCHES OF SATURDAY AND sUNDAY.l
AUGUSTA, January 3d.-The military force
is still kept at the State house, being on duty
during the night, but not in the day time.
| Tonight several persons went to the State
house on business, but were refused admls-
sion, not having the countersign. Gentlemen
who preceded them advanced to the outer
door, giving three knocks. The guard within
| inquired, "Who comes ~ "a friend" "Ad-
vance ard give the countersign." Nv. T.
Low :" was responded, and the gentlemen en-
tered, while the armed guard closed the
doors on the others, who were without the
countersign. No military company or other
organized body has been raised to resist the
State authorities, nor will there be. To-mor-
row is the day fixed upon for the gathering
here of Fusion members. 1t is thought but
| few will respond, as most OF them will re-
main at their homes over Sunday.
DECLINES.
PENNINGTON, January 3d-Louis Voter
! DEM, counted in by the Fusionists as a
Representative, has returned his certificate
to the Governor, believing that the reason
given for the Acknowledgement of Farming
ton is not sufficient to justify his acceptance
of the position.
DECISION OF THE SUPREME COURT.
BANGOR, January 3d.-Following is the
text of the unanimous opinion of the SUI
preme Judicial Court, finished and signed
this afternoon, in answer to questions sub
mitted by the Governor
Question l. When the Governor and Council
decided that there is no return from the city on
which Representatives can be summoned to attend
and take their seats in the Legislature is it their
duty TO order a election or is it competent for
IL g uaratat rrnG ~ GhaI
there election of such Representatives in fact
to admit them to their seats, though no return
thereof was made and delivered into the office of
the Secretary of State? Answer.-No authority is
given to the Governor and Council, when there is
return, to order new election When the seat OF a
Representative has been vacated by death, resigna
ton or otherwise, provision is made by the Revised
Statutes for filling existing vacancies. BY these pro-
visions, whenever municipal officers therein men,
toned by any means have knowledge of the death
ef Representative elect, or Of vacancy caused in
any other way, it is their duty to order new cleo
ton. II it appears TO the House OF Representatives
there was election of Representatives in fact,
they should admit them to their seats, though no
return thereof made to the Secretary OF State.
Representative is not to be deprived of his rights
because municipal officers have neglected their duty.
Question Us it competent for the Governor and
Council to GLOW the substitution OF other evidence
in place of the returned copies OF such lists as
are provided for in Article 4, part section OF the
Constitution, to enable them to determine what
persons appear to be elected" Representatives to
the Legislature by plurality OF all votes re
turned2" Answer.-Ths refers to the substitution
authorized by the Act of 1877, chapter 2l2. The
Constitution calls for a return that is regular in es
sental FORMS and which truly represents facts to be
described by 1t. But much OF the constitutional
requirement is directory merely. 1t does not aim
at depriving the people OF the right OF suffrage,
of their right Of representation for formal errors,
but aims at avoiding such result where constitu-
tional requirement has not been fully or been defec
lively executed by town officers 1t is in aid of the
constitutional provision to supply omission
deficiency as nearly and as correctly as may be.
Such is the purpose OF the statute. Il is competent
for the Governor Of the Council 10 allow erTULc
Gus return, one til It is Informal or defective, to
be aided and corrected by an attested copy of the
record, IS by statute provided. The object OF the
constitutional provisions respecting elections is to
furnish as many safeguards as may b. against
failure either through fraud or mistake, correctly
to ascertain and declare the will of the people
as expressed in the choice OF their officers and
legislators Hence the requirement that not only
shall returns be made on the spot, in open town
meeting, but record OF the vote shall be made at
the same time and authenticated In like manner,
if by accident willful neglect there is
omission in the return, what can be safer than to
refer to the duplicate statement by the record to
correct it? This the statute OF 1877 allows to be
done and, while the language is permissive, it falls
within a well-known legal rule, that when public
rights are concerned it shall be construed manda
torv The command is clothed in the language of
courtesy clothed because it could not be doubted
that high and honorable officials would unhesi-
tatingy avail themselves OF all lawful means to de-
clare the result OF an election according to the
actual fact in obedience TO the fundamental princi
pies of popular government. The Governor and
Council are bound by the statute. 1t is mandatory
upon them lit imposes duty to the public that must
be performed. Whether the Act referred to
travenes the Constitution in allowing oral evidence
to be received 10 show the intention OF voters in
casting their votes, is another part OF the statute
which we are called upon to consider. II I'M
constitutional in the latter respect that would not
affect the conStitutionaity of the other separate
and independent provisions.
Question SIS return signed by less than
majority of the Selectmen OF u town. or the Alder
men of q city, valid, within the requirements of the
same section? Answer.-To this question we answer,
that while town may legally elect as many as sev,
Selectmen the well-known practice is to elect only
three and in such cases, return to be valid must
be signed by ma jority of them, because by TO
possibility can less number constitute a legal
quorum But the rule is otherwise with respect to
the Aldermen OF cities. Most OF our cities are re-
dJired by law to have as mgny seven Aldermen,
and none OF them, we believe, have less than five
To constitute aquorum 1t is only necessary to have
j majority OF the whole number present, and when
such quorum is present majority OF the quorum
may do business Surprising the number to be
seven, four would constitute legal quorum, and
three being majority, that quorum could legally
act, although the fourth should refuse to
Join them, or should oppose their action. Conse-
quently, if the return from city having five or
seven Aldermen is signed by three of them, it may
be a valid and legal return, because only four may
have been present anu III sucn case LIFee (OelDg
majority OF those presently could legally act, al
though the fourth should oppose their action and
refuse to join them. When such return is laid be-
fore the Governor and Council they cannot know,
and they have right to assume, that return IS
not valid 1t is the duty of Aldermen to be in SEES
sion and examine ward returns, compare and de-
eide the votes, and OF the Clerk to make a record
thereof From that record, certified copy OF which
is returned, the law presumes that quorum OF Al
dermen was present. In the latter work authorities
are quoted to the effect that bodies composed of
definite number act by majorties of those present.
provided those present constitute majority OF the
whole number. Ii body consists of twelve Coun-
slmen, seven is the least number that const-
tute a valid meeting, though four of the seven
may act and, so far are aware
the law is 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 Repre-
sen atives established by law is Isl. A majority
THAT is seventy -sixlmembers) constitutes quorum
to do business Ii there is actually that number
present, and the majority ttat IS thirty-nine MEM
bersl vote in the affirmative, valid law can there
by be enacted, other business transacted. If
less than seyenty-six members present, then
business can be done except to adjourn or compel
the attendance of absent members. This is fam-
liar law, and illustrates the principle applicable 10
Aldermen of cities, and shows how and why re-
turn signed by less than majority of the whole
number may be, and so far as the Governor and
Council concerned, is eonclusyely presumed to
be valid. They have no right TO 60 behind the re-
turn.
Question As return by the Aldermen of the
city which does not give the number of votes cast
for each person voted for as member Of the Legis
lature, aud does not show what persons were voted
for as such members in any OF the several wards
of such CITY, valid return within the requirements
l of the same section2 Answer.-We are not sure
that we comprehend the full scope of this question
Our answer VIII meet all OF its supposed purposes II
| is imnaterial whether the Aldermen returned to
the Governor and Council a detailed vote OF each
| ward separately or whether they returned the re-
suit of all the votes OF all the wards for each candl
date together. Either mode is satisfactory way OF
! reaching the same result. The substance only Is
sought Tor in such matters. Nor is 1t a material
matter that instead of returning all the names OF
persons voted for there is a return Of votes as
! scattering: provided that, however, such votes
may he added or subtraeted from the candidate,
or set of candidates, who appear to be chosen by
| a plurality OF votes throw1i- he Governor and
Council cannot officially knew, nor have they the
right to ascertain that the votes returned as scat
tering were not actual ballots with the werd scat
tering written thereon. Nor is the elestion OF
can idates to be chosen by plurality of votes q be
defeated because the whole number Of votes or bal.