National Republican., 1880-01-05
GARCEL0N BRANDED.
An Emphatic Robuke from the ST.
preme Court.
His Questions Answered in n Way to Cove'
Him with InTnmy-His whole Course
Declared IlIogal--Sothing Left for
the Tusionists to Hang to
An Attempted inter-
view with GnrcclOn.
Tho Law Expoundod by the Supreme Court

Tho Law Expounded by the Supreme Court
BANGOR, Me-, Jan i-Tho following is the
full official text of the unanimous opinions of
tho Supreme Judicial Court, finished and
signed yesterday afternoon, in answer to ques.
tions submitted by the Governor:
TO hc Hon. AiOn=o Gdrccloa, Gorernor Of Maine!
The undersigned Justices Of tho Supreme
Judicial Court, have tho honor TO submit the
following answers to the questions proposed:
Question 1.-Wbon the Governor and Coun-
Gil decided that there is no return from a city
on which representatives can be summoned
to attend and take their soats in the cgisla-
turc is it their duty to order now election,
or is II competent for tho House of Represent.
atives, If it shall appear that there was an
election of such representatives in fact, to
admit them to seats, though no return thereof
was made and delivered into tho Office of the
Secretary of State?
An, wur.-No authority Is given to tho Gov.
ernOr and Council when there Is no return 10
order n new election. When the scat of u
representative has been vacated by death, res
ignation or otherwise, provision Is made by
Revised Statutts, chapter 4, sections 80, Al and
AZ, for the filing Of existing. vacancies. by
these provisions, whcuover municipal officers
therein mentioned by any means, have knowl-
edge of the death Of a oprcscnmtiYG-ecct or
of a vacancy caused in any other way, 1t is
their duty to order new election. If it ap.
pears to the House OF Representatives, that
there was nm election Of representatives in
fact, they should admit them to their srats,
though no return thereof was made tn tho SGcrc.
tary OF State. A representative Is no: to bo de-
privCd of his rights because municipal officers
have neglected their duty.
Question 2.-ls 1t competent for the Governor
aud Council TO allow the substitution of other
evidence in the place of returned copies of
liNt lpI f,r "a, 81. 4
part l, section 8, of the Constitution, to en-
able them to determine what persons "appoar
to be elected" representatives TO the legisla-
ture by plurality Of all the votes returned?
Answcr.-This refers to the substitution au-
thorized by the act Of 1877, c. 2l2. Tho Con-
s,itution calls for " return that is regular in
the essential FORMS and which truly repre-.
sents tho facts to be described by it. But
much Of the constitutional requirement is
directory merely. /. docs not aim at depriv-
ing people of their right of suffrage or their
right OF representation, for formal errors, but
aims at avoiding such II result Where con-
stitutiUnal requirement has not been fully,
OF has been dcieCtively executed by town OIL
cors, it is in aid of tho constitutional prov-
sion to supply tho omission or deficiency as
nearly and as correctly rs may be. SuGh is
tho purpose Of the statute. 1t is competent
for the Governor and Council to allOwan erro-
neous return, or one that is informal or de-
feCtive, to be aided and corrected by an A.
tested copy of the record, rs by tho statute
provided. Tho object of the constitutional
provisions respecting elections is to furnish as
many safeguards as may be against a failure,
either through irand or mistake correctly to
ascertain and declare tho will of the people as
expressed in the choice of their officers and
legislators. Hence the requirement that not
only shall returns be made OH tho spot in
open town meeting, but record Of the vote
g1,a11 nt Inn
Gated in like manner, Ifby accident or willful
neglect there is an error or omission in the re.
turn, what can be safer than to refer to the
duplicate statement of tho record to correct
it2 This the statute Of 1877, chapter 2l2, al.
lows to be doue; and whilo the language Is
permissive, il iuls within the wcllknown
legal rule that where public rights are con-
cornGd it shall be construed as mandatory. A
command clothed in tho language of courtesy
is SO clothed because it could not bo doubted
that high and honorable officials would un-
hesltatingly avail themselves of all legal
means to declare the result of an election.
According to the actual fact, in obedience to
the fundamental principles of popular govern
mcnt, the Governor and Council are bound by
the statute 1t is mandatory upon them; it
imposes duty to the public that must be per-
formed. Whether the act referred TO contra.
Yenes the Constitution in allowing oral evil
dence to be received to show the intention of
the votors in casting their votes, Is another
part of the statute " hich we are not now called
upon to consider. III unconstitutional in the
latter respect, that would not affect the con-
stitutionality Of the other separate aud inde.
pendent provision.
Question 3,-ls II return signed by less than
a ma jOrity Of sGlectmon of Il town or the alder.
men of n city valid within the the require.
ments of the same section?
Answcr.-To this question we answer, tina
Nubi pnu al
seven selectmon, q wol-known practice is to
elect only three, and in each case u return to
be valid must be sigEed by majority Of them,
because, by no possibility can less number
constitute tt legal quorum. But the rule Is
otherwise with respect to the aldermen of
cities Most of our cities are required by law
to have as many as GCvCn aldermen, and mono
of them, wc believe, has less than five 10
constitute quorum 1t is only necessary to
have q MINORITY of the whole present, and
when such Il quorum Is present majority of
the quorum may do business SupDOsing tho
number to bo seven, fOur would constitute a
legal quorum, aud three, being majority of
that quorum, could LOCALLY act, although
fourth should refuse to join them or should
oppose their action. Consequently, If a return
from city having five or seven
aldermen is signed by three Of them, it
may be a valid and lagal return, because only
four may have boon present, and in such u
case tafeS (bcing majority oi those preseht)
could legally act although the four shall oppose
thoir action and refuse to join thom. When
such Il return is laid before the Governor and
Council they cannot know, and they have no
right to assume, that the return is not valid
1t is the duty of aldermen to be In session and
examine ward returns, compare and declare
votes, and tho duty Of the clorl to make q
record thereof. From that record, u certified
copy of which is returned, the law presumes
that quorum of aldermen WAS present. Tho
whole number Of representatives established
by law is l5l. a mujority-that is, 76 mem.
bers--constitutes quorum to do business, If
there Is actually that number present, and u
majority ofthem-that Is, 80 39members-Yote in
the affirmative, u valid law can thereby be
enacted or other business transacted. If less
than 70 members are present, then no business
can bo done except to adjourn or compel the st-
tendance Of absent members This Is n familiar
law and illustrates principle applicable to
aldermen of cities, and shows how and why
return signed by less than a majority of tho
whole number may be, and SO far rs tho
Governor aud Council arc concerned il, con-
conclusiyely presumed to bc valid They
have no right to 20 behind the return.
Question As a return by aldermen Of
city which docs not give the number Of votes
cast for each person voted for Ns u member of