Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-01-05

majority of the whole number. To use Mr.
Danes illustrations IF body consists of twelve
cOunoilmen, seven ia the least number that can
constitute valid meeting, though four of the
seven may act, and go far as we are
aware, the law ia SO stated in substance
by all ancient and modern authorities. The
rule applicable to such cases is similar to that
which applies to our house of representatives.
The whole number of representatives estab-
lished by law is ISL. A majority of that is Is
members and constitutes a quorum to do
business. If there is actually that number
present and majority, then-that is 80 menu
bers-vote in the affirmative, valid law can
thereby be enacted or other BUSINESS trans
acted. If less than 76 members are present
then no business can be done except to adj
iourn or compel the attendance of absent
members. This is familiar law, and illus
trates the principle applicable to the aldermen
Of cities, and shows why and how return
signed by less than majority of the whole
number may be- and SO far as the governors
council are concerned is, cOnclusively pre-
sumed to be valid. They have no right go be-
hind the returns.
Question-Is return by the aldermen of a
city which does not give the number of votes
cast for each person voted for as member Of the
legislature. and does not show what persons
were voted for al such members in any one OF
the several wards of such city, valid return
within the requirements of the same section?
Answer-We are not sure that we comprehend
the full scope of this question. Our answsr
will meet all of it's supposed purposes. 1t is
immaterial whether the aldermen returned to
the governors council detailed vote of
each ward separately, or whether they re-
turned the result of all votes of all
| wards for each candidate together. Either
mode is a satisfactory way of reaching
the same result. The substance only is sought
for in such matters. Nor ia it q material mat
tori hat inafaad of rafu oil tho of
all persons voted for. there is returns of votes
as scattering, provided that, however, such
votes Lay be added or substracted. Some
candidates or set of candidates appear to be
chosen by plurality of the votes thrown.
The governor and council cannot officially
know, nor have they the right to ascertain, that
the 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 to be defeated
| because the whole number of votes or ballots
| may be stated enormously or not stated at
all. The constitution contains no such re-
quirement, the statutory provision re-
quiring it is essentially, entirely
unimportant and inapplicable to cases where
plurality of votes elected. 1t is a well set
tied rule of the constitution that where the gen.
| ernl terms of the statute embrace several sub
jects, but are found to be practically applicable
to some of the subjects and not to others, 1t ls
only to which it is practically applicable.
QUESTIONABLE returns from towns or
cities which are not attested by the town or
city clerk valid under the same section?
Answer-Returns from towns and cities
which are not attested by town, plantation or
city clerk are not valid. The attestation of
clerk is q prerequisite to any action of the
governor and council in counting votes 10Th
Maine $751; IT, however, the clerk should be
absent, a clerk pro tenip0re may be chosen as a
deputy clerk may be appointed under the sta
tute of 1877 (chapter ~ and amended thereof.
By the act of 1874 Chapter 1897 the returns of
| such clerk pro tenpOre or deputy clerk are to
have the same force and effect as if signed by
| the clerks.
Question-Have the governors council
right to reject returns of the election
| of members of towns which were not made,
signed or sealed up in open town meetings?
Answer-The governors council must act
up IN the returns forwarded to the secretary of
| State if they purport to be made, signed,
| sealed upon open plantation or town meeting.
| They constitute the cases of action of the can
| wasting board. No provision is found in the
| constitution or in any statute of this State by
| virtue of which they would be authorized to
receive evidence OF the negative facts therein
| set forth. They therefore have no such power.
| The statement of the municipal officers is in
| that respect exclusive.
OuestiOn-Is the return of two persons pur-
| porting to be selectmen of a town valid and
sufficient evidence of the vote of town, when
| it appears there were at the time of the meet
| ing at which the election was had, but two Sc
lectmen?
Answer-When a majority of selectmen are
absent from the meeting for election purposes,
| or being present, neglect or refuse to act as
such and to do all the duties req uired of them,
the voters at such meeting may choose 30 many
selectmen pro tenn. as are necessary, as to corl-
- IL akny,k b. th4@ rtYnn
| Revised statutes, chapter 4, section 20). In
case of the death or removal of all the select
men, two would be sufficient and competent to
act The inquiry is if the return would be
valid when there SHOULD be but two .electmen
at the time of the meeting at which the cleo
| ton was held. 1t other selectmen had deceased
| prior to the meeting, the survivors might act,
and their action would be legal but canvassing
| would not be admissible to prove the fact that
| there were but two selectmen of the town. The
| governor council cannot officially know there
| are only two.
| Question Can a person who is not a citi-
| zen of the United States at the time be legally
| elected or constituted selectman of town?
Answer-A person not a citizen may be
elected or constituted a selectman SO that his
official acts bind the town, and are valid SO far
as affects the public. Such alone would
be an officer de tacto and clothed with appare Mt
right. his acts would bind the town. Dane vs..
Derby, "a Maine, go. An officer de .faeto is one
who comes into office by color of legal appoint
ment or election. His acts in that capacity are
as ralid as far as the public is concerned as the
acts of officers de jure. His title cannot be en-
! quired into collaterally. (The people vs.. Cook,
| 4 Selden, 89). The precise definition of an
officer de .tttcto, observes Bigelow c. j., in
the Fitchburs Railroad Company Grand
Junction and Depot Co., Allen, 557, is one
! who comes in by the forms OF law and acts
| under a commission, an election apparently
| valid, but in consequence of some illegality in
capacity or want of qualification is incapable
| of holding office. Indeed, there is entire unan.
unity of opinion on this subject in ell States
of the Union where the question has arisen, as
we'll as the courts of the United States but the
fact of alienage is not allowed to be proved.
| This was determined in the Frenchville case
| ga Maine, 1897 where it was shown that the
clerk was an alien who could neither read nor
write the English language, where almost
every conceivable irregularity existed. Yet
| evidence outside of the returns was held mad
INVISIBLE, nor would such fact have any effect
| if it appeared in any but the returns itself.
Question-If ballot has a distinguishing
| mark, in the judgment of the governor and
| council such as would make it illegal under the
statute, have they authority to disregard it in
! their ascertainment of what persons appear to
be elected, where it appears by official returns
| of the officers of the town such vote was re-
| ceived by the selectmen subject to their objec-
ton, and its legality referred to the governor
| and council for decision?
| Answer-The presiding officers are to deter
mine whether the ballot offered has dlstin-
gushing 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
figures it is no part of the duty of the
officers of the town to make any
report or reference thereto. They should re-
ject the ballot if offered where it is within the
prohibition of the statute. The statute pro-
hibits the rejection of the ballot after it is
ceived into the ballot box. 1t is then to be
counted. The governor and council have moth
ing to do with the question. Their duty is to
count the vote regardless If the fact Improperly