The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1880-01-05
The Intent of a Voter Must Govern
the Count In all Cases,
For this is a Government of the
People, by the People, for
the People,
And no Sharp Practice can be Per
mittsd to Defeat the Popu-
lar Will.

BANGOR, January 8, 1850.
To Hon. AtOnso GarcelOn, GOuernor Of Maine
The undersigned Justices OF the Su.
preme Judicial Court have the honor to
submit the following answers to questions
proposed;
Question when the Governor and
Council have decided that there is no re-
turn from city on which Representatives
can be summoned to attend and take their
seats in the Legislature, is it their duty to
order a new election, or is it competent for
the House OF Representatives, il it shall
appear there was IN election Of such Rep.
resentatives in fact, to admit them to 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 no
return, 10 order new election. When
the sedt OF Representative has been va.
Gated by death, resignation or otherwise,
provision is made by R. S. G. 4,Section 3S,
54.47, for the filling Of the existing yacan-
cies. By these provisions whenever mu-
nicipal officers therein mentioned by any
means have knowledge OF the death OF a
Representative elect, or a vacancy caused
in any other way, it Is their duty TO order
a new election. II 1t appears 10 the House
OF Representatives that there was an cleo
ton OF Representatives in fact, they should
admit them to their seats, though no re-
t,,n IN a nj
State. A Representative is not to be de.
prived OF his rights, because municipal
officers have neglected their duty.
Question 2-1s 1t competent for the Gov
ernor and Council to allow the substitu-
ton OF other evidence in place Of the
returned copies OF such lists" as provided
for in Article 4, Part 1st, Section 8, Of the
Constitution, to enable them TO determine
what persons appear to be elected" Rep
resentatives to the Legislature "by the
plurality OF all the votes returned?"
Answer-This refers to the substitution
authorized by the act OF 1877, g. 2l2, and
the constitution calls for return that Is
regular in essential forms, and which truly
represents the facts to be described by it.
But much OF the constitutional require
ment is directory merely. 1t does not aim
at depriving the people OF their right Of
suffrage or OF their right OF representation
for formal errors, but aims at avoiding
such result. Where the constitutional
requirement has not been fully or been de-
fectively executed by town officers, 1t is in
aid OF the constitutional provision to sup.
ply the omission OF deficiency as nearly
and as correctly as may be. Such is the
purpose OF the statute. 1t is competent
lor the Governor and Council TO allow an
erroneous return, or one that Is informal
or defective, to be aided and corrected by
an attested copy OF the record, as by stat
ute provided. The object OF the Consii-
tutional provisions respecting elections is
to furnish as many safeguards Us may be
against the future, 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 the returns be made on the spot in
an open town meeting, but record OF the
vote shall be made at the same time and
authenticated.
In like manner, il by accident or wiliul
neglect there is an error or omission in
the return, what can be safer than to re.
fer to the duplicate statement by record
to correct IL? This the statute OF 1877, G.
2l2, allows to be done; and while the Ian.
guage is permissive, it falls within well
known legal rule, that when public rights
are concerned, it shall be construed as
mandatory; a command clothed in the
language OF courtesy, so clothed because
1t could not be doubted that high and
honorable officials would unhesitatingly
avail themselves OF all lawful means to de.
clare the result Of an election according to
the actual fact, In obedience to the funda-
mental principles OF popular government.
The Governor and Council arc bound by
statute. It Is mandatory upon them; 1t
imposes duty TO the public that must be
performed. Whether the act referred to
contravenes the Constitution in allowing
oral evidence to be received, to show the
intentions OF voters In casting their votes,
in another part OF the statute which we
are not called upon to consider. II uncon.
stitutional in the latter respect, that would
not affect the constitutionality OF the other
separate and independent provision.
Question 8. Is return signed by less
than majority OF the SeleCtmen Of 8
town, or Aldermen OF city, valid
within the requirements Of the same sec.
ton?
Answer-To this question we answer
that, while the town may legally elect
seven Selectmen, the well known practice
is 10 elect only three, and in such cases q
return to be valid must be signed by ma.
iority OF them, because by no possibility
can less number constitute legal quo.
rum. But the rule Is otherwise with re.
spect to Aldermen OF cities. Most OF our
cities are required by law to have as many
as seven Aldermen, and none OF them, we
believe, has less than five to constitute a
quorum. It Is only necessary to have q
majority OF the whole number present,
and when such quorum Is present, ma
iority OF the quorum may do business.
Supposing the number to be seven, four
would constitute legal quorum, and
three being majority, that quorum could
legally act, although the fourth should 70.
fuse to join them, or should oppose their
action; consequently, II the return
from the city having five to seven Alder.
men is signed by three Of them 1t may be
a valid and legal return, because only
four may have been present; and in such
case three (being majority Of those pres
ent), could legally act, although the fourth
should oppose their action, and refuse %
Join them. When such return Is laid
before the Governor and Council, they can
not know and have no right to assume
that the return Is not valid. Its the duty
OF Aldermen to be In session and examine
Ward returns, compare and declare votes,
and OF the clerk to make record thereof,
From that record, certified copy OF which
Is returned, the law presuInes that q quo
rum Of Aldermen were present, The law