Oxford Democrat. [volume] (Paris, Me.) 1833-1933, 1880-01-13
THE MAINE STEAL.
The Opinion of the Supreme Court.
The Counting.Out Squarely Condemned
at Every Point.

Clnclkl text OF tue UNANIMOUS oplniou Va hue
Supreme Judicial Court, finished and signed
this afternoon, in answer 10 the questions sub
mit,ed by TIE Governor
BlNGoS, Me, Jan ,, 1850.
To the Hon. Alosso Gdree'on, Gorerno' Of
Name,
The undo rsisned. Justices Of the Supreme
Judicial Court have the honor - submit the
following answers 10 the questions proposed
OIL when the Governor snd Council decide that
there Is no return from city ON which Representa-,
tlyrs can be ; mmOncd % attend ana take their
seats in the Leg sNturc, l. Il their dcty oruerA
neW election, or j. II competent ior the iioesc OF
Representatives. II u shal appear that mere wAs
an election OF such Representatives, ~ admit them
o. seats n Ough ~ return thereof was made anu
delivered 10 the Office % the Secretary OF state
A.-No authority is given . the governor and
council. when there II no return, 10 order
new election when Itc seat of Reprc,ent-
alive Ia. he-u Vscst i by death, resignation
or Ctierxsr, provision il made by RS. chap.
sec. IS. ~ and 81, fer the all NJ Of existing
vacancies. By these provisions, whenever
the municipal othcers therein mentioned have
knowledge by suv means OF the death oil
Representaty,-elc;t or of a vacancy caused
in any otherway il i. their DUTY TO order
new election. fiji appears 10 the House OF
Rspresentsiivss that tlere was an election OF
heprtstNiktlNts III lhNAs w FA"NsN
them 10 their seats, though no return thereof
va, made 10 the Secretsr, of State. The Rep
re.ents,ive /. not TO be deprived OF his rights
because municipal oth :ers have neglected
their duty.
o. Isitccnpete tent for the Governor and Council
20 AL " the substitution OF other evidence m place
o: the returned copies OF such lists A. are proNlie
Tor IN article part section : OF the ConsIltu'son
n cnahle them 20 determine what persons Sppeai
70 be eicctei Representatives, 10 the Legislature BY
plurality OF all the votes returned
A.-This refers 20 the substitution author
ned by the act OF 1871, chap. PIP. The
constitution csls for return that IL regular
in essential forms, and which truly repie'
SCENTS the facts - be described by II, but
much of the constitutional requirement Is d.
rec,ory, merely. IL does no; ain al depriving
the people OF their n sht Of representation
for formal errors, but aims NJ avoiding such
result, Where the constitutional requirement
has not been fully. or has been deiectvely
executed by town officers, /: is IN aid oil the
constitutional provision 20 supply the omis-
sion or deficiency a. nearly and as correctly
q. NAV be. Such Is the purpose Of the stat
ute 1t compel mt for the governor and
council to ALLOW An erroneous 'e:urn' or one
that is informal o, defective, to be aided and
corrected uy an a,,es;ed copy Of the record,
ss by statute provided. The object Of the con-
,titu,ional provisions respecting elections Is
20 furnish a. many safeguards as may be
against a failure, either through fraud or
mistake. 10 correctly ascertain and declare
the will Of the people - expressed IN the
choice Of their officers and legislators
Hence the requirement that no, only shall
the returns be made on the spot IN open town
meeting, but that a record OF the vote shaII
be made at the same tine and authenticated
in ike manner Ii by accident or ~i!tui
neglect. there is al error or omission N the
return. what can be safer than 20 refer 10 the
duplicate statement by the record 20 correct
H. This the statutes Of 1871, chap. @lZ, al
lows 10 b. done, and while the language Is
permissiye, il falls within the welI-known
legal rule that. when public rights are coz
cerned IL shall be construed a. mandatory
a command clothed in the language OF
courtesy. go clothed because i could
not be doubted that high and honor
able Officials would, unhesi,a,insly,
avail themselves of all lawful means
% declare the result, of an election
according = the actual fact, in obedience
10 the Fundamental principles of popular gov
eminent The Governor and Council arc
bound by the statute. IL is mandatory upon
them. II imposes 8 duty 20 the public that must
be performed. Whether the actreie'red TO coz
travenes the Constitution IN allowing oral eSl
d,nce ID be received, 70 show the nten.ion oil
the voters IN casting their ballots, IS another
part of the statute, which We are not now
called upon 10 consider. II unconstituilonal
in the latter respect, that would not affect TIE
cous,i,ulionality OF the other separate and IN
dependent provision
o.-S Isa return siguei by less than amsloriiy OF
the -electmen OF n WI, Jr the aldermen Oi CRY
valid within the requirements OF Inc same seo''oh'
A-To this question We answer, that, while
stowp NAV legally elect as many as seven Sc
lectmen, the well-known practice is 10 eiec'
only three, and, 10 such cases, return, 10 De
valid, mus, be signed by msJori'y OF them
because by no possibility can less NUMBER
constitute a legal quorum; but the rule IS
otherwise with respect - the sidermen oil
cities Most of our cities are required os ia~
10 have as many as seven aldern en-, ana none
Of them, we believe, has less than i've To
constitute a quorum, II /; only necessary 10
have n msioriGy of the whole number present,
and when such Quor um is present, MAJOR
ity of the quorum may do business. Sup
posing the number 10 be seven, four you'd
constitute a legal quorum, and three being
majority of that quorum could legally act, al
though the fJurth should refuse 10 Join them,
or should oppose their action. Consequently
fla return from city having five or seven
aldermen IL signed by three OF them, II may
be 9 valid and legal return, because only Tour
NAV have been present, and, in such case,
three (beiug majority Of those present