The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1880-01-03
The Saco Return.
JUDGE TAPLEY'S OPINION.
The Validity OF the Return sAfrmed

The Validity OF the Return gAmrmed
We print below the very able reply of Judge
R. P. Tapley, City Solicitor of Saco, made in
response to a request of Mayor Clark of that
city for his opinion upon the case of the re-
turn of the city Of Saco. The document will
be of interest as applying to the returns of that
and other cities which have been rejected by
the Governor and Council as "fatally defec
tive:''
The return of the city of Saco, made and
duly delivered Into the Secretary Of States
office, of the votes given by the duly qualified
electors Of that city for the office of Represen-
tative to the Legislature to be convened on the
first Wednesday of January, 1880, has been
by the canvassing board declared fatally defec-
tive because signed by only three Aldermen in
conjunction with the Mayor OF the city and
city clerk.
This act of the canvassing board is believed
to be erroneous.
1. Unless there is clear unqualified re-
quirement of law that such act shall be done
by more than three Aldermen Of that city, and
such requirement is an indispensable pre-
requisite to make it return, the want of more
than the three signatures will not justify dis
carding it as a return.
The effect of discarding it as return is the
disfranchisement of the citizens OF the city for
time at least.
The practical result in the present case is to
probably exclude them from any voice in the
election of Governor and other State officers.
We cannot close our eyes to the ordinary
modes of legislation. 1t is the history of the
past and as such within our notice.
This subject becomes important as it bears
upon the rule of construction to be applied to
those provisions of the constitution bearing
upon the subject
Touching this matter have to say that it is
universal rule having its foundation in COM
mon JUSTICE as we'll as being one necessary in
the administration of republican form of
government, that every intendment shall be
made in favor Of the legitimately expressed
will of the people.
To sacrifice the substance to the most critical
adherence to unsubstantial form would be do
ing violence to this rule and promoting that
which was sought to be protected by the pro-
visions of law under consideration. 1t is not
enough that the provisions of law are suscepti-
BILE Of a construction which will defeat the will
of the people and disfranchise the citizen; it
must be one that is susceptible of no other con-
struction.
This is the rule observed in determining
whether or not given statute having all the
forms of law is invalid as being inconsistent
with some provision Of the constitution.
Unless such statute is necessarily an infringe
ment of the higher law OF the constitution it
will not be declared invalid. The will of the
people thus duly expressed must stand until
met by some provision of law superior to it.
The provisions of the constitution relative to
the return of votes cast in cities is found in the
4th Section of Art 4, in part first of the consti
tuition, and is as follows:
"The Aldermen of any city shall be in ses-
sion within twenty-four hours after the close
of the polls in such meetings and in the pres.
ence of the city clerk shall oper, examine and
compare the copies frcm the lists of votes
given in the several wards, of which the city
clerk shall make record, and return thereof
shall be made into the Secretary OF States
office in the same manner as selectmen of
towns are required to do"
This last sentence requires "return thereof"
to be made. This 1 apprehend means return
of the record of the clerk. That is the next
preceding antecedent.
The next requirement is that the return of
this record shall be made "into the Secretary
of States office" in the same manner that
selectmen of towns are required to do.
Now upon recurring to the previous provis-
ions of the constitution it will be found that
there is no provision requiring selectmen OF
towns to make any return
They are C) to preside impartially at town
meetings; (2) to receive the votes of the elec-