The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1880-08-13
CUMBERLAND COUNTY.

been Wrongfully declared elected 10 tnat ONCE,
when in fact, he was not so elected.
This proceeding is under and by virtue OF c.
1893 of the acts of 1880, entitled IAN act provid-
ing for the trials of causes involving the rights
of parties to hold public offices"
The processes by which rights are to be es-
tablished and wrongs redressed are within and
subject to legislative control. Old forms and
modes of procedure may be abolished and new
ones established.
All offices, except when legislative authority
is limited or restricted by constitutional pro-
visions are subject to the will OF the Legisla-
ture. There is, with the above exception no
vested right in an office or its salary. The office
NAV be abolished The mode of appointment
may be changed. The length of time of official
existence may be shortened. The compensa-
ton for official services may be diminished.
Farwell V. Rockland. 62 Maine 29S Butler V.
Pennsylvania, 10 How (U. 81 403. Parker v.
Pittsburgh, Barr 81. Conner v. New ork,
/ Selden 291. Taft v. Adams, 3 Gray 1876.
The act c. 1913 OF the acts of 1880, was passed
to enable parties duly elected to office but not
declared to be so elected to contest their rights
before judicial tribunal. The defendant was
declared elected to the office in controversy by
the canvassing board of the State The allega-
lions in the bill are, that errors occurred in the
doings and proceedings of the board, and that
upon fair and honest count the plaintiff was
duly elected but that the defendant has usurp-
ed the office to which ne was so elected.
"When one is charged with usurping an office
in the commonwealth, there must be-" re-
marks the Court in Com. v. Fowler, 10 Mass.
$50. authority in this Court to inquire into
the truth of the charge" This act gives a
remedy in case of an erroneous or fraudulent
count by the canvassing board 1t will hardly
be contended that if by errors of computation,
throwing out legal returns or counting illegal
ones, candidate not duly elected is wrong
fully declared to be elected there should not
10 n1xyr dad Cow
ly elected, by which the wrong done may b.
corrected If the error is not subject to cor
recton, then the canvassing board in the ex.
ercise of irresponsible power, have full and alb
soute control of the government and may eff
fectually stit1e the voice of the people, accord
ing to their sovereign will and pleasure
Before the passage of the act under consider
alton, the only existing process by which right
of one unlawfully holding office could be in
quired into, was Quo Warranto. This writ
issues in behalf of the State against one VINO
claims or usurps an Office to which he is not
entitled, to inquire by what authority he sup
ports his claim or sustains his right. The pro.
ceeding is instituted by the Attorney General
on his own motion or at the relation of any
person, but on his official responsibility. 1t
lies against an officer appointed by the govern
or and Council or elected by the people. 1t
removes the illegal incumbent of an office, but
1t does not put the legal officer in his place. 1t
is insufficient to redress the wrongs of one
whose rights have been violated.
To restore person to an office from which
he has been unjustly removed or unlawfully
excluded, the proper process is by mandamus.
BY this, the rights of one lawfully entitled to
an office, but which have been illegally with
held, may be enforced, Strong pet. 90, Pick.
497.
By Quo Warranto the intruder is elected.
BY mandamus the legal officer is put in mis-
place; The act c. 1913, accomplishes by one
an% the same process the objects contemplated
by both these processes. 1t Gusts the uplaw-
full incumbent. 1t gives the rightful claimar
the office to which he is entitled 1t affords a
speedy and effectual remedy instead of the
tedious and dilatory proceeding of the common
law.
cannot be sustained. The grounds of objec-
ton to its maintenance we propose to ex-
anime.
~ "The respondent contended that the
Legislature which passed the act authorizing
this and the Governor approving it, could not
rghtfully do so, because there was prior de
tdcto Legislature with de .tacto Governor, as
set forth in the respondents answer, not
ousted by any competent tribunal
The act IN question was passed by an organ
lied and acting Legislature, approved by the
Governor and comes before us with all the in
dicia of validity by which any act of any past
Legislature is or can be evidenced.
When there are two conflicting Legislatures,
each claiming of right to exercise legislative
functions it is for the Court to determine by
which body legislative authority can be law
fully exercised. In answer to inquiries made
by certain gentlemen claiming official position
under date of Jan. %, 1880. this Court used
the following language: "When different
bodies of men, each claiming to be and to ex-
ercise the functions of the legislative depart
ment of the State, appear, each asserting their
titles to be regarded as the law-givers for the
ic IN oh Inf If fho ind oio1
department. who must inevitably, at no dis
tant day, be called to pass upon the validity
of the laws that may be enacted by
the respective claimants to legislative au-
thority, to inquire and ascertain for them
selves, with or without questions pre-
sented by the claimants, which Of those bodies
lawfully represents the people from whom they
derive their power. There can be but one
lawful legislature. The Court must know
for itself, whose enactment it will recognize as
laws of binding force, whose levies of taxes it
will enforce when brought iudicially before it,
whose choice of prosecuting officer before
the Court it will respect. In thousand ways,
it becomes essential that the Court should
forthwith ascertain and take judicial cogni-
Zance of the question, which is the true legis-
lature2'
We are bound to take judicial notice of the
doings of the executive and legislative depart
ments of the government, when called upon
by proper authorities, to pass upon their valid
ity. We are bound to take judicial notice of
historical facts, matters of public notoriety and
interest passing in our midst" These views
are in full accord with the decisions of our
highest tribunals. In Swennestan v. Column
bian Insurance Co., 81 N. Y, 1888. it was OBJ
jected that there was no evidence of a civil
war. "This objection" observes Hunt j., 81
do not consider a sound one. THE rule 1 take to
be this: That matters of public Ehistory, affect
ing the whole people, are judicially taken no
tice of by the courts; that no evidence need be
produced to establish them; that the court in
aScertaining them, resort to such documents of
reference as may be at hand and as may be
worthy of confidence. Thus in the prize cases
already cited e Black 667) the court uses this
language: The actual existence of 1civil war
is fact in our domestic history which the
Court is bound to notice and to know There
the general facts connected with the history of
the case seem to have been assumed as within
the judicial.cognizance OF the Court. Greer-
leaf in his work on Evidence Vol. l, Sc, says
courts will also judicially recognize the po-
litical constitution or frame of their own gov
eminent; its essential political agents or public
officers, sharing in its regular administration;
and its essential and regular political opera
tions, powers and actions. Thus, notice is
taken by all tribunals of the accession of the
chief Executive of the nation or state, under
what authority they act his powers and privi-
leges, &C., " the sittings of the legisla-
ture and its established and usual course of
proceeding. In fine, Courts will take no
tice of whatever ought to be generally known
within the limits of their jurisdiction. In all
these and all like cases, whenEthe memory of the
Judge is at fault, he resorts to such documents
of reference as may be at hand; and he may
deem worthy of confidence 1t is the duty of
the Court to know county officers Farley VS..
Mcconnell Lans. 426; much more the Cover
nor and the Legislature. Stateivs. Minnick, 10,
Iowa 123."
After a careful consideration of the grave
and important questions proposed by the
Governor, the rightful legislature and a body
of gentlemen claiming, but without right, to
be a legislature, this Court in its several an
swers of January last announced the result
to which it had arrived; that the legislature
by which the act under discussion was passed,
was the legislature to whose acts the obedi-
ence of the people is due. In the correctness
of the conclusions which were then reached,
and in the principles and reasons upon which
those conclusions are based we rest in perfect
confidence.
To the same general effect are the cases of
Wood v. Webber, 43 n. Y. 1854; Cuyler v. Fer
rill, l abb. U. S. 1863; Rice v. Shook i27, Ark
1871; Kilebrew v. Murphy, Heisk Tenn. 546
Division OF Howard Co., 10 Kansas 1874: Tur-
ner " Pstten, 40 Ala. 406; Ashley " Martin,
80 Ala, 537; Smith V. Speed, so Ala, 276;
Andrews V. Knox Co 20 Ill. 65: Dunthit v.
SImson, 60 Mo. 26S; Foscue v. Lyon, 80 Ala.
419.
The body of men which the counsel for the
defendant terms by courtesy de tdcto legisla-
ture, though lit house was composed of men
who were and who were not elected both
classes not constituting quorum, and of