The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1880-01-05

with respect to quorum and majorities
correctly stated In Volume 5, Dane
Abridgment, pages 150 and 15l, and Di
Ions Municipal Corporation, Sections q
and 2l7. In the latter work 1t Is said tha
bodies composed Of definite number az
by majoritiesofthose sepresent, provided tha
those present constitute majority OF th
whole number; or, TO use Mr.. Danes Il
lustration, II the body consists OF twelv
counCilmen, seven is the least numbe
that can constitute q valid meet
ing, though four OF the seven may act
and so far as we know the law
so stated in substance by all ancient ant
modern authorities. The rule applicabl,
to such cases Is similar to that which up
plies to our House OF Representatives
While the number OF Representatives es
tablished by law is l5l, a majority THAT Is
seventy.six members) constitutes a quo
rum to do business. II there is actually
that number present, and the majority O
them THAT Is, thirty-nine members) vote
In the affirmative, valid law can thereby
be enacted, or other business transacted
II less than seventy-six members are pres
ent, then no business eau be done, except
TO adjourn and compel attendance OF ab
sent members. This is familiar and IL
Illustrative principle applicable to Alder
men OF cities, and shows how and why O
return signed by less than majority oi
the whole number may be, and, 80 far as
the Governor and Conncil are concerned,
Is conclusively presumed TO be valid. They
have no right to go behind the return.
Question 1. Is a return by Aldermen Of
the city, which does not give the number
OF votes cast for each person voted for as
a member Of the Legislature, and does
not show which persons were voted for as
such members In any one Of the several
wards Of such city, a valid return within
the requirements OF the same section?
Answer-We are not sure that we com.
prehend the full scope OF this question.
Our answer will meet all OF its supposed
purposes. 1t Is immaterial whether the
Aldermen returned TO the Governor and
Council the detailed vote OF each ward
separately, or whether they returned the
result OF all votes for all wards for each
candidate together. Either mode is sat.
isfactory way OF reaching the same result
Substance only Is sought for in such mat.
ters. Nor is 1t a material matter that, in
stead OF returning all names OF persons
voted for, there is return OF votes as scat.
tering; provided. that, however, such votes
may be added or substracted, some candi.
date or set OF candidates appear to be
chosen by plurality OF the votes thrown.
Governor and Council can not eGectually
know, nor have they right to ascertain,
that votes returned as scattering were not
actual ballots with the word scattering"
written thereon. Nor is the election OF
candidates to be chosen by plurality OF
votes 10 be defeated because the whole
number OF votes or ballots may
be stated erroneously or not stated
at all. The Constitution contains
no such requirement, and the statutory
provision requiring it is entirely unim.
portant and inapplicable 10 cases where
plurality OF votes elects. 1t is well set
tied rule ot construction that where the
general terms OF statute embrace several
subjects, but are found to be practically
applicable to some subjects and not to
others, 1t is to be construed as embracing
those subjects only to which il is practical
ly applicable.
Question s. Are returns from towns or
cities which are not attested by Town or
City Clerks valid within the same section |?
Answer-Returns from towns or cities
which are not attested by Town, Planta-
tion, or City Clerks, are not valid. The at
testation OF q clerk Is prerequisite 10 any
action Of Governor and Council in count.
ing the votes (6S Maine, 5Ss). II, how
ever, the clerk should be absent, clerk
pro TEN may be chosen, or a deputy
clerk may be appointed under the statute
OF 1877, G. II, and the amendment thereof
by the act Of 1874, @. 1859. The returns OF
a clerk pro TEN, or deputy clerk are to have
the same force and effect as II signed by
the clerk.
Question 0. Have the Governor and
Council the right to reject returns OF the
election Of members to the Legislature, as
required by the same section from the Off
GERS OF the towns, which were not made,
signed, or sealed up in open town meet
ing2
Answer-The Governor and Council
must act upon the returns forwarded to
the Secretary Of State, sealed up in open
plantation or town meeting, they consti-
tute the basis OF action byt he Canvassing
Board. No provision Is found in the Con-
or any statute OF this State by
virtue OF which they would be authorized
to receive evidence to negative facts there.
in set forth. They, therefore, have no
such power. The statement OF the muni-
cipal officers is in that respect conclusive.
Question 7. Is the return Of two persons
to be selectmen Of the town,
valid and sufficient evidence OF the vote oil
the town when 1t appears there were at
the time OF the meeting at which the cleo
tion was held but two selectmen OF that
town?
Ansg er-When a majority OF the Sc.
lectmen are absent from meeting for elec-
ton purposes, or, being present, neglect
or refuse to act as such, and TO do all the
duties required Of them, voters at such
meeting may choose so many selectmen
pro tempore as arc necessary to complete
the number competent to do the duties.
Is. S. @. 4, Sec. 25.) In case OF death or
removal OF all the selectmen two would
be sufficient and competent to act. The
inquiry is, II a return would be valid
when there should be but two selectmen
Nv tIlG tilhG VI bHe LheuLiuh Ut mulCh the
election was held. If'rre other selectmen
had deceased prior to tho meeting, the
survivors might act, and their action
would be legal. But the Canvassing Board
are to be governed by the returns. Evil
dence would not be admissible to prove
the fact that there were but two selectmen
OF the town. The Governor and Council
can not officially know there are only
two.
Question S,-Can person who is not a
citizen Of the United States at the time be
legally elected or constituted a seleclman
OF town.
Answer-A person not citizen may be
elected or constituted Selectman, so that
his official acts may bind the town, and
are valid so far as affects the public. Such
one would be officer de facto, and clothed
with apparent right. His acts would bind
the town. Dane vs. Derby, 81 Maine, o..
An officer de tdcto is one who comes into
office by color Of legal appointment or
election. His acts in that capacity are as
valid as far as the public il concerned as