Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1880-01-05

His title canrot be Inquired into collaterally. .
The People vs.. Cook Selden 50: s'The pre-
else definition of an officer de faefo. observes
Bigelow, Chief Justice. in. Fitchburgh r. r.
Company VS.. Grand Junction and Depo,
Company, Allen $50, sis one who comes in
by the forms of Law and acts under connie
sion or election apparently valid, but in con-
sequences Of some illegality. incapacity, or
want of qualification, is incapable Of holding
the office" Indeed there is an entire unan-
unity Of opinion on this subject in all the
States of the Union where this question has
arisen. as well rs in the courts Of the United
States. But the fact of alienage is not al
lowed to be proved. This was determined in
the Frenehville case, "a Me-, $50, where it
was shown that the clerk was an alien who
could neither read nor write the English Ian
guage, and where almost every conceivable
irrcgularity existed, yet evidence outside Of
the returns was held inadmissible. Nor
would such fact have any effect, if it appeared
in and by the return itself.
CUES. .. TIA ballot has distinguishing mark,
in the Judgment of the Governor and Council,
such as would make it illegal under the stat
utes, have they authority to disregard it in
their ascertainment Of what persons appear to
be elected, where it appears by the official
return of the officers of the town that such
vote was received by the selectmen subject
to the objection, and its legality referred to
the Governor and Council for decision?
? Ans. The presiding officers are to deter
min. whether the ballot offered has dis
,inguishing mark or figure, so that, if rejected,
the voter may procure ballot, if he chooses,
to which no exception can be taken. But if
the ballots have distinguishing marks or fig-
ures, il is part of the duty Of the officers Of
the town to make any report in reference
thereto. They should reject the ballot, if
the statute. The statute prohibits the rejec-
ton of the ballot, latter it is received into the
ballot box" 1t is then to be count
ed. The Governor and Council have
nothing to do with the question. Their
duty is to count the votes, regardless Of the
fact improperly set forth in the return.
They are no where constituted tribunal
with judicial authority to determine what
shall constitute distinguishing mark or fig
ure, nor can they legally refuse ''to open and
count the votes returned" 81 Maine, Coz.
When the ballot has been once received in
the ballot box, neither the selectmen nor the
CUES TO- If the names of persons appear in
the return, withou. any number Of votes being
stated or carried out against them, either in
words or figures, is it the duty of the Gov
ernor and Council to treat those persons as
having the same number of votes as another
person received for the same office, and whose
name is placed first in the return, if they find
dots under the figures or words set against
such other persons name?
Ans. If the ditto marks or ''dots'' are placed
under the figures or words of the first can
didates vote, the return should be counted.
Where it appears by the letters or figures in
the first line, and by ditto marks or by dots in
the following lines, that the same class of can
didates received the same vote, there can
be no ground for rejection. The word ditto
and its abbrevation ''do' and the dots or
marks that stand for the word ditto, are Of
common use, and have perfectly well de-
fined meaning, known to persons generally.
That meaning should not be disregarded.
We answer the question in the affirmative.
Dues. IL. Have the Governor and Council
the legal right to decide what kind of evidence
they will receive, and what the mode of pro-
ceeding before them shall be to enable them to
determine the genuineness Of returns required
by the article and section of the constitution
above mentioned?
Ans. We assume that the 'genuineness
of the return referred to relates either to
the signatures of the officers signing, or to al
terations of the return. The Governor and
Council have no power to reject the returns on
either ground, unless an objection in writing is
presented to them setting forth that the sig
natures of such officers Cor some one Of theml
are not genuine, or that the return has been
altered after it was signed. Then notice
thereof should be given to all persons inter-
ested, and when adjudicating upon the facts,
the Governor and Council should be governed
in the admission of evidence by the established
rules Of evidence in accordance with the Law
of this State. The witnesses should be duly
sworn that they may be punishable for the
crime Of perjury, if they wilfully and cor
ruptly testify falsely. The Governor and
Council have no right to reject the return
for such cause. without giving the parties in
terested therein, q fair opportunity to be
heard. The genuineness Of the return in
these particulars is to be presumed, and this
presumption remains until overcome by
evidence produced as before said.
CUES. l2. 1.-THE Governor and Council have
before them two lists of votes returned from the
same town, differing materially from each
other in the number of votes returned as cast
for the same persons, but identical in all
other respects. both having been duly re-
ceived at the Secretary's Office, and they have
no evidence to enable them to determine
which is the true and genuine return, are they
required to treat either of them as valid?
Ans. When two lists of votes are returned
to the Office of the Secretary Of State by the
clerk of any city, town or plantation, and
both are duly certified, the return first re-
ceved at the Office of the Secretary must be the
H.. ~ - A.