The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1880-01-07

| ca
| or other business transacted. II less than 70
| members are present, then no business can
| be done except to adjourn or compel the at
tendance OF the absent members. This Is
familiar, and illustrates the principle appiica-
| bic to aldermen of cities, and shows how and
why return, signed by less than majority
| of the whole number, may be, and far as
| the governor and council are concerned, ts
conclusively presumed TO be valid. They have
no right to go behind the returns.
Question Ills a return by aldermen of a
| city, which does not give the number of votes
for each person voted for as member OF the
| Legislature, and does not show what persons
| were voted for as such members In any one of
Il the several wards of such city, valid return
! within the requirements Of the same section?
| Answer-We are not sure that we compre-
hend the full scope OF this question. Our
answer will meet all of Its supposed
the aldermen returned to the governor
and council detailed vote of each ward
sepdI sISiy, OI Mnetuer tney IetuIueu 1iS re-
suit 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 Is 1t
a material matter that instead of returning
AL names of persons voted for there is a return
| ofthe votes as scattering, provided that, how
| ever, such votes may be added or subtracted
| some candidate or set or candidates appear 10
| be chosen by plurality of votes shown the
/ governor and council can not officially know,
| nor have they a right to ascertain
/ that the votes returned as scattering were
not actual ballots, with the word scattering
| written thereon, nor Is the election of a can
| didate 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 requirement, aud the statutory pro
| vision requiring IL is entirely unimportant
| and inapplicable TO cases where the authority
| of votes elects II is q well settled rule OF
| construction, tnat where the general terms OF
| the statute embraces several subjects, but are
| found to be practically applicable to some
| cf the subjects and not TO others, IL is TO be
| construed as embracing those subjects only to
| which IL is practlcaDly applicable.
| Question 5-Are returns fTom towns or
| cities which are not atteSted Oy the town or
| city clerk valid within 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
| city clerk Is prerequisite 10 any acIion of the
| governor and council in counting votes. (6o
| Maine, 5SS.) If, however, the clerk should be
absent, clerk pro tempore may De chosen & or
/ adeputy clerk may be appointed under the
| statute of 1877, e. Il, and amendment thereof,
/ by act of "a, Z. l59. Returns OF such clerk pro
| tempOre or deputy clerk are TO have the same
| force and effect as II signed by the clerk.
| Question slave The governor and council
members OF the Legislature required by the
/ same section from officers of towns which
/ We're not mads, signed or scaled mp In open
| town meeting:
| AnSweT-The governor and council must act
| upon the returns forwarded TO the secretary of
state. II they purport to tie made, signed and
| sealed up IN open plantation or town meeting,
/ they constitute basis Of action OF the can
| vassing board. No provision is found in the
constitution or in any statute OF this state by
|
| receive evidence 70 negative the facts
| therein set forth. They therefore have no
such power. The statement Of municipal OFF,
GERS is, in that respect, conclusive.
| Question lis the return of two persons
| purpOrtiDg 10 be Selectmen of a town, valid
/ aud sufficient evidence of the vote of the
| town when il appears there were at the time
| of meeting at which the election was had but
| two Selectmen OF that town?
| Answer-When "A majority of the Selectmen
are absent from a meeting Tor election pur-
| poses, or being present, neglect or refuse to
/ act as such, aud TO do all duties required of
them, the voters at such meeting may choose
| so many selectmen pro tempore as are nee
/ essary to complete the number competent to
/ do the duties. Is. ;. &. 4, section 20 In the
| case of death or removal of all seleetmen, two
/ wOuld be sufficient ana competent to act. The
| inquiry is II the return would be valid when
| there should be but two selectmen at
| the time OF the meeting at which
the election was held. II 9th
TO the meeting the survivors might act, and
/ their acuOn would be legal, but the can vassing
board are 70 pe governed py % tne returns; EVIL
| fact that there were but two seleetmen of q
| town; the governor and council can not Of
/ ficially know there are only two.
| Question Can person who Is not a ciu-
zen OF the United states at the time be legally
| elected or constituted selectman of a town?
| Answer-A person not citizen may be
| elected or constituted a selectman that his
| Official acts bind the town and are valid. SO
/ an officer defacto and clothed with apparent
/ right. His acts would bind the town. Dane
4
is one who comes into office by the color of
| legal appointment or election. His acts, in
that capacity, are as valid, as far as the public
/ is concerned, as the acts of an officer de jure.
His title can not be inquired into collaterally.
| The people VS.. Cook, Selden, 81. The precise
6efniton OF an oiiicsr re de it,scto, observes
/ VS. Grand Junction and Depot company, l
| Allen, 557, Is one who comes in by forms OF
| law and acts under commission or election
| apparently valid, but IN consequence OF some
| illegality, fncapacity or want OF qualification
| is incapable of holding office. Indeed, there
| is an entire unanimity OF opinion on this
| subject in all the States of the Union where
this subject has arisen, well as In 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, $751; where 1t was shown that the
4 clerk was an alien who could neither read nor
/ write the English language, and where almost
| every conceivable irregularity existed yet ev
/ idence outside OF the returns was held tnad-
| missable, nor would such fact have any effect
| If IL appeared in any of the returns itself.
Question 9-If the ballot has distinguish
and @ oonAcii, such as would make Il Illegal
| under the statutes, have they the authority TO
disregard IL in their assortment of what
| persons appear to be elected, where il appears,
| by official returns of officers of town, such
vote was received oy selectmen, subject TO
| their objection, and its legality referred TO
| governor and council for decision?
| Answer-The presiding officers are TO deter
| gushing marx or figure so that II reject d the
| voter may procure the ballot If he chooses,
| TO which no exception can be taken, but IL the
| ballots have distinguishing marks or figures,
IL is no part of the duty of the officials of the
| town to make any report or reference thereto.
| They should reject the ballot, If offered, where
| IL is within prohibition of statute. The statute
prohibits the rejection of a ballot after IT Is
| received into the box. IL is there
| to be counted, the governor and council
having nothing to do with the question. Their
duty is TO count the vote, regardless of the fact
improperly set forth in the returns they are
no where constituted tribunal with judiciary
| authority to determine what shall consti-
tute distinguishing mark or figure,
nor can they legally refuse to open and count
the votes returned. (54 Maine, 90 When a
| ballot has been once received in a ballot box,
| neither the selectmen nor governor and cOun-
ell can refuse TO count IL.
Question l0-If the names Of the persons ap-
| pear I'm return without any number of votes
being stated or carried out against them,
either in words or figures, is 1t the duty
| OF the governor and council to treat these
| persons as having the same number OF votes
as another person received for the same office,
and where the name is placed first In the re-
turn, If they find dots under the figures or
words set against such ether persons name?
| Answer-When ditto marks or dots are
| placed under figures or words OF the first can
didate's votes, the return should be counted I;
where it appears by letters or figures in the