Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1880-01-17

: cradle TO a resort 10 violence. No rights
, should be lost by those who seasonably as.
s,r. them and appeal to the constitutional
tribunals Instead of resor,ing TO force.
Qles. Is. Can the IS members elect
} enumerated in question, constitute and or
ganize a legal House of Representatives to-
gether with nine other members elect who
+ were in fact elected and appear by the official
returns and by the decision Of the court TO
be elected though the nine (9) seats aforesaid
are claimed BY other candidates who were
summoned hy the Governor and Council but
were not in fact elected and do not appear to
be elected by said official returns under the
decision of the courts
Ans. 1t will follow from the answers to
questions twenty-one and twenty two that this
question. for the reasons and upon the cir.
cumstances here referred to, must be an
swered also in the affirmative.
| Ques. 81. When a person receives a summons
as Il member of the House of Representa-
tives, and returns the same to the Governor
before the assembling of the legislature and
resigns his seat. is il competent for him to re-
call and cancel that resignation after the leg
iSlature has assembled and organized or car
he be compelled to attend as a member?
Ans. One who under such circumstances
returns his summons ard resigns his seat,
thereby makes Il vacancy in the
| House which is to assemble. which vacancy
may he filled by a new election" Under
the provisions of art. II. part |, sec. & of the
| constitution. That the proper steps may he
taken by the municipal officers To that end,
il is necessary to regard such resignation as
irrcvocable. 1t. when once made. il could he
recalled at will, the municipal officers could
never know that the seat was vacant by res
al.
be compelled to attend as II member. He is
no longer a member. The language of the
court, in regard To using the power OF
the Houses to compel the attend
ance of these members in the con-
stitutional opinion, given in 81 Me-,
a63, applies only to those who. without vacat-
ing their seats. absent themselves from the
sessions of the body To which they were cleo
ted. 1t would be alike contrary to
the spirit of our institutions and
detrimental to public policy to hold
that man might he compelled TO ac-
cept an Office of such character. We
therefore answer the question in the negative.
Cues. -. In case the official returns of the
votes east for Governor should he lost. con-
ceacd or inaccessible by accident or fraud. is
it competent to count the votes for Governor
by using certified copies OF the official record
in the Slater
Ans. In our recent answer To questions
presented by the Governor, we said in sub
stance that one of the objects of the consti-
tutional requirements of n record of the vote
to be made AT the same time and authenticat-
Ell in like manner with the return was to
guard against the possible result of mistake,
accident or fraud in the official returns of
votes. When such returns of the vote for
Governor are lost. concealed or inaccessible
by accident or fraud, the result Of the cleo
ton NAV still he asccrtained by using ccrti-
fled copies of the official records mentioned
in the question. Neither the carelcssness nor
the turptulc of the officers charged " it'll the
making or the custody of the returns, can be
suffered to defeat the will of the people rs
expressed in the election so long rs the lcgisa-
turc can ascertain it from the records thus made.
True. the constitution provides that the Secre-
tary of State shall on the first Wednesday Of
January. lay the lists before the Senate and
House of Representatives, but this portion
is directory. and failure to comply with it
cannot defeat the right of the legislature to
ascertain and declare the result Of the cleo
ton. When the trainers of our constitution,
and our Legislators have taken such pains to
perpctuate the evidence of the votes east,
and to guard that evidence against the effect,
upi pHiN VI attlitHt, nut vi uutlldu tultlUuity
or pcriiditv, it is not TO be thrown away be-
cause the Secretary of State fails or is unable
TO comply with this direction. The constitu-
ton is To be construed, when practicable in
all its parts, not so as to thwart, hut so as to
advance its main object, the continuance and
orderly conduct of government by the
people. We answer the question in the af-
frmative.
The questions before us are attestcd in the
usual mode and purport to come from organ
lied bodies They are ofthe utmost importance.
Our answers are entirely based on the as
sumption of the existence of the facts as
therein set forth. We cannot decline an an
swcr if we would. In u case like the present
the remark Of Chief Justice Marshall in CO.
hens vs.. Virginia. are peculiarly applicable.
at is not true" he says 'that this court
will not take jurisdiction if it should not, but
1t is equally true that it must take jnrisdc
ton. if il should. The Judiciary cannot, as
the legislature may, avoid a measures, because
il approaches the confines Of the constitution
We cannot pass il by. because il is doubtful
with whatever difficulties a case may be at
tended. We must decide it if il Il brought
before MS. We have no more right to decline
| the exercise of jurisdiction which is given than
TO usurp that which is not given; the one or
| the other would be treason to the cOnstitu-
tim. Questions may occur which We would
gladly avoid. But we cannot avoid them
JONI APPLETON.
CHARLES w. WALTON.
WILLIAM g. BARRows.
CHARLES DANFoRTH.
JONI A. PETERS.
| ARrEMrs LIBBY.
JosEpH w. SfMoNDs.
To Joseph A. Locke, President of the Sem
ate and George +. Weeks, Speaker Of the