Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1880-01-08


propounded them by His Excellency Gov
ernor Gsrcelon:
To The Honorable AIonzQ Garcelon, Cover nor
Of Maine:
BANGOR, Jan s.
The unde tsigned Justices Of the supreme Ju-
dicisl Court. have the honor to submit the fol.
lowing answers to the questions rropo.ed
Qucston-W hen the Governor aud Council
decide ths, there is no return from a city, on
which representatives can be summoned TO At
tend and take their seats in the legislature IL
1t their duty to order a new election; or /. Il
competent tor the House Of Representative, II
II shall appear that there was an election of
such representatives in fact, TO admit them to
seats. though no return thereof wa made and
delivered into the Office Of the Secretary Of
state
Answer-No authority i given 20 the GOV
and Council. when there Is no return. To order
\ new election. When the seat Of a represen-
tsiiVc has been vacated by death. resignation or
otherwise. provision i made by X. :. CHAPTER
4;3s.ii.4i for the filling of existing vacancies
Nv these provisions whenever the municpal
officers therein mentioned 10y any means have
knowledge Of The death OF a Representative
elect or Of a vacancy caused in any other ,xay .
II j. their duty TO order a new election. II Il
sppears 10 the House Of Representatives that
there was an election OF Representatives Ia fact
they should admit them TO their seais. though
no return thereof was made 10 the Secretary OF
Ntalf. ne Representative i not 10 be- de-
pri'vd OF his rights because municipal officers
have neglected their duty.
q. !. II competent Tor the Governor and
Council 10 allow the substitution of other evil
d,nce in place Of 1.-THE returned copic, Of such
l-i,' - are provided for in Article {. Fart
First. Section =. OF the Constitution. TO enable
them To determine Whist persons appear TO
BE- ciecied~ Representatives to the legi>la-
tGre, "hy plurality Of all the votes returned -
\. This refers 10 the substitution author
lied 10y the act Of Isl, c. PIP. The COnstitu-
ton calls for a return that j. regular in essen
tial form., and which truly represents the fact.
10 ise described by H. But much OF the consiitu-
lional requirement. - directory merely. II doc
not aim At dcpriyine the people Of their right Of
repre- sen,aiion Tor formal erro-s, but aim, Al
avoiding such 4 result. Where the constitutional
requirement has not been fully or has been defrc
lively executed by the town officers. It t. in aid
J 81 th- constitutional provision 10 supply the
/ omission or deficiency nearly sud A. cor
rvc.ly as may b.. such !. the purpose Of the
siaiU'c- II i competent for the Governor and
Council 10 allow an erroneous return or one
1 that j. informal or defective TO De- aided and
corrected 10y an sticsied copy Of the record. a..
y ht statute provided The object q the con.ti-
I iuiiunSl provision. respecting election. j to
i iurul'h - many safeguard. a. may b.. against
a l.l HEf. .'.f.f ftf. Ugh fraud CT tut-fHkr. 90
! correctly ascertain and declare The 81 .,i lts
/ people A. expressed in he choice Of their Of
nceTs Aud legislators. Hence the requirement:
\ ,hA, not only hall the return b. made on The
siso, IN open town meeting. bar that record OF
+ The vote shali b. made 81 the same time aud au-
+ Ihenticatcd IN like manner. II by accident or
I wiilul neglect there Is An error or omission In
/ the rrtuTu what can b. saicr than 10 refer 10
{ the duplicate statement made in the record to
] correct ~ This the statute Of 80, e. 2l2.
I allows TO bc done. aud while the language :
/ pcTmissiSc u tails within the wcl!-Anown legal
: rule that. when public rights arc concerned Il
! shall bt construed As mandatory 4 command
! clothed 10 the language of courtesy: 50 clothed
4 because It could not be doubted that high and
/ honorable officials would unhesiisiingly avail
| Themselves Of all lawful means TO declarr the
] r..ui Of al election ACCORDING 10 the artusl
/ fact IN obedience 10 the fundamental princi-
/ PEE OF popular government The Governor
/ and Council are bound by the statute. IL Ii.
mandatory upon them. II imposes = duty to
/ the public that must b. performed. Whether
/ the act referred 10 couiravenes the COn,iiin-
! ton Ia allowing oral evidence 10 b. received To
show the Intention Of voter in casting their
votes, 3, smother part Of the statute which We
srr not now called upon 10 consider. II unoon-
s'ltuilonal IN the latter respect, that would not
/ affect the oon,iliulionaiiiy Of the other scpa-
( rate aud independent provisions.
.. l. 81 return, signed ~ les than q major
ny Of the scleoimen Of town. or the aldermen
( Of 4 city, valid within the requirements Of the
sane section
A To This question We answer that. while
town may legally eject a. many seven -
! lccimcn, the well known practice l.. TO elect
4 oniS three; and IN such cases \ return. TO be
/ valid, must lie signed by a majority Of them.
because, by no possibility. can less number
constitute legal quorum. But the rule is
/ otherwise with Respect TO aldermen Of cities.
| Most Of our cities are required by law TO have
/ A. many A. seven aldermen. snd none OF them,
we believe, have les. than i've. To constitute
! quorum, II i only necessary 10 have major
!iy OF the whole number present; and whe q
/ such quorum l. present, = majority Of the
quorum may do business. supposing the num-
/ Der 10 be seyen, four would constitute a legal
| quorum. and three being majority OF that quo
! rum could legally act, although the fourth
/ should refuse 10 join them, or oppose their A.
I lion. Consequently, II n return from a city
Z having nEe or seven aldermen. i signed by
I three OF them, il MAY be a valid and legal re-
turn. because only four may have been pres
eht- aiid In such case, thrre being 4 majority
OF those present. could legally set. although
the fourth should oppose their SETON and re-
/ fuse TO loln them. hen sIch 4 return /. laid
before the Governor and Council. they cannot
Know. and they have no right to assume. thu
/ The return Is not Valid. IL j. the duty of the
aldermen 10 be in session and examine the
ward returns, compare and declare the votes.
| and OF the clerk 10 make record thereof From
that record, Il certified copy OF which is re-
turned. the Law pre.umes that a quorum Of
The aldermen was present. The law with re-
spect to quorums aud mAiOrities j. correctly
I stated in ) Dane. Abridgement, 80 and /
Dlllon's Municipal Corporations, PIG and
III. In the latter work it is said that bodies
composed Of definite number. act by majori-
| Ties OF those present, provided those present
constitute a majority Of the whole number. Or,
TO use Mr.. Danes illustration, if the body con-
sists OF twelve councilmen, seven il the least
number that can constitute 3 valid meeting
though four OF the seven may act. And 50 far as
we are aware the law Is 30 stated. in substance,
by all ancient and modern authorities. The
I rule applicable 10 such cases Is similar to that
which applies 10 our House OF Representatives.
| The whole number OF representatives, estab-
llshed By law is one hundred and iifty-one. A
! majority lihat Is seveniy-sI member con-
sttutes quorum 10 do business II there /.
| actually that namber present and a ms jority OF
| them lthst Is, thlrty-nine members) vote In
the ali rmstive. valid law thereby be
enacted, or other business transacted. II less
| than seSenty-slx members are present, then no
business can be done, except to adjourn. or
compel the attendance OF absent members
This Is familiar law, and illustrates the princi-
pie applicable TO the aldermen OF cities. and
shows how, and why. return, signed by less
than majority Of the whole number may be,
and so far Ms the Governor and Council are
concerned Is cenclusiyely presumed 10 be valid.
They have no right TO go behind the return.
z. Is return by the aldermen OF d city
which does not give the number of votes cast
for each person voted for rs a member OF the
legislature and does not show what persons
we're voted TOR as such members in any one OF
the several wards Of such city, a valid return
within the requirements Of the same sectioni
A. We are not sure thst We compre be nd the
full scope of this question. Our answer will
meet all OF Its supposed purposes. 1t is imma.
teriai whether the aldermen return to the Gov.
ernor and Council the detailed vote of G ach
ward separa iely. or whether they returned the
result OF all the votes Of the wards for each
candidate together. Either mode is q satisfactory
way OF reaching the same result Substsn
only Is sought for in such matters. Nor is II n
material matter that instead OF returning all the
names OF persons voted for, there is a return
OF votes As scattering, provided that, however
such votes may be added or subtracted. some
candidate or set Of candidates appear TO be
chosen by plurality of the votes thrown. The
Governor and Council can not officially know.
nor have they the right to ascertain, that the
votes returned - scattering were not actual
! ballots with the word scattering written there
| or. nor il the election of candidates to be
chosen by plurality Of votes 10 be defeated be :
cause the v hole number Of votes or ballots may
be stated enormously or not stated at all. The
cons tiiution contains no such requirement, and
the statutory provision requiring it. Is entirely
unimportant and inspplicsble TO cases where q
plurality OF votes elects. 1t 10 q well settled rule
| ofconstruction that where the general terms OF
. statute embrace several subjects but are found
| to be practically applicable to some of the sub
iects and not to others, it Is to be construed as