The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1880-01-08

! a p,ur5!i;g o! votes 20 be detected be-
Cause the whole Dumser of votes or
ballot msy be stated eTroneouslv, or
not stated st ali. The Constitution
/ contains no such requirement, and
the statutary provision requiring
II Is entirely uoimpOr;an; aud
/ inappiic2 ole 20 csses where - plurality
/ OF voIc,. elects Il is well settled fuls
| OF The cons tuition, that where the
! general 'eimsuf 6 statute ombrsce gem
eTsl subjects. az are found 20 be par
! ticu!aIy applicable 10 some of the sub
! J c.s and nor 10 Others it Is to be COL
strued as embracing those subjects to
which il is particularly applicable.
D. Returns frcm towns and cities
which are attested by the town, plan
tsticn or city clerk are rot valid The
attention of the clerk is prert quisite to
any action Of the Governor and ccun-
ell IN counting votes as Msine, $3.50.
II however, the clerk should be ab-
sent, clerk pro TEN may be appointed
under the statute of 1877. (See II
and amendment thereof; see act of
1874; see 800. Returns of such clerk
pro tenn or deputy clerk, are TO have
the same power and effect as il signed
by the clerk.
O. The Governor and council must
act upon the returns forwarded to the
Secretary of the State. If they pur-
port to be made, signed and sealed up
in an open plantation or town meeting,
they constitute basis of action of the
cinvassiDg board. No provision is
-, H..
statute of this State by virtue of which
they would be authorized to receive
evidence to negative the facts therein
set forth. They have no such power
The statement OF the municipal officers
Is in that respect conclusivs.
z. When majority of selectmen
are absent from the meeting for
election purposes, OF, being pres
ent, neglects or refuses 80 &C.
rs such, and TO do all the duties re-
qulred Of them The voters at such a
NEE ting may choose so many select
men PROTEIN as are necessary to COM
plete the number competent to do their
duties. Or. S. c., p. 8, sec, 20) In
case of death or the removal OF all Sc
lectmen but two would be sufficient
and competent to act. The inquiry is
ii the returns would be valid when
there should be but two seleclmen at
the time of the meeting at which cleo
ton was held, and II other selectmen
hane died priOrsto the meeting, the
survivors might act, AEH their action
would be legal, bus the canvassing
board are to be governed by the
returns oflthe evidence, and wound not
be admissible 10 prove the fact that
there were but two selectmen of the
town government, and that Town can
not officially know that there are
| only two.
8. A person not a citizen may be
elected or constituted selectmau, so
that his file al sc;s bind the town and
are valid, so far as they affect the pIb-
lie. Such one would be an officer de
tdctO and be clothed-W with apparent
rights. His acts would bind the town.
Dane V. Derby. 81 Maine, 81 An Of
beer *. tGct6 Is one who comes into Of
fee by color of legal appointment or
election. His acts in that capacity are
valid, so far as the public is concerned.
AS acts of an officer de j,tre, his lille can
not be inquired into collaterally. (Peo-
pie v. Cook, Selden, so The pre-
else definition of an officer de factO, OBJ
serves Bigelow, Chief Justice, in the
case of Fitchburg Railrosd v. Grand
Junction and Depot Company, Allen,
557, is one who comes in by the forms
of law and acts under a commission or
election apparently valid, but, in con-
sequence OF some illegality in his ca
pacity or want of qualification, he is
incapable of holding the office. In-
Decd, there is an entire unanimity of
opinion on this subject in all the States
of the Union where the question has
arisen, as we'll as in the courts of the
United States, but the fact of alienage
was not allowed to be proven. This
was determined in the FrenchvIlle
case, Ga Maine, $50, where il was
shown that the clerk was an
alien who could neither read
or write the English language, and
where almost every conceivable irregu
larity existed. Yet the evidence out
side of the returns was held inadmis-
sibie, nor would such fact have any eff
feet if it appeared in the return itself.
o. The presiding officers are to de-
termine whether the ballot offered has
d distinguished mark or figure, so that
the rejected voter may procure the
ballot, if he chooses, to which no eX-
ception can be taken. If the ballots
have distinguishing marks or figures,
it is no part of the duty of the ,fficers
of the town to make any report in ref
ereDce thereto. They should re jsct, il
tfered, when it is within the prohibit
ton of the statute. The statute pro
hibits the rejection CT the ballot after
| it is received into the b OF box. 1t
| is then to be counted. The Governor
and council have nothing to do with
the question. Their duty is to count
the votes, regardless OF the fact I'M
properly set forth in the returns. They
are nowhere constructed Gs a tribunal
with judiciary authority TO determine
what shall constitute a Distinguishing
mark or figure, nor can they legally
refuse to open and count votes re-
turned ga Maine, 602), when the bal
lot has been once received IN the bal
lot box, and neither selectmen nor the
Governor and council can refuse to
count it.
10. If ditto marks or dots are placed
under figures or words of the first
line, the candidates vote return should
be counted where it appears by letters
or figures in the first line, and by dit
to marks or by dot3 in the following
lines that the same class OF candidates
received the same votes, there can be
no ground for the rejection of the
wo:ds ditto and its abbreviation to do.
and dots, as they are marks that stand
for the word ditto, or common rse
have perfectly defined the meaning
known to persons generally, that
meaning should not be disregsrded.
IL. We assumed that the genuine
ness OF the returns referred to relates
either to the signatures of the officers
signing, or to alterations of the re-
:urns. The Governor and councI
have no power to rel :ct the re-
turns on either ground, unless objec-
ton in writing is presented to them
setting forth that the signstures OF
such officers, or some of them, are not
genuine, or that the return has been
altered after it has been signed, then
notice thereof should he given all per-
sons interested, and when Adjudicsted
upon the facts the Governor and couu-
cil should be governed in the admis
sion OF evidence by the established
rules of evidence in accordance with
the law of this State. Witnesses
should be duly sworn that they
u u