The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1880-01-05

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within the same section?
A.-Returns from towns and cities which
are not attested by the town, plantation or
CITY clerk, are not valid. The attestatlon OF
Governor and Council in counting votes. (6o
Maine, $751; If, however, the clerk should be
absent, clerk pro temp0re may be chosen, or
deputy clerk may be appointed, under the
statute of 1872, G. II, and the amendments
thereof by the act of 1874, c. 49, The re-
tu1ns of such clerk pro tempore, or deputy
clerk, are to have the same force and effect as
if signed by the clerk.
Q.-Have the Governor and Council right
to reject returns of the election of members OF
the Legislature, required by the same section,
from the officers of towns, which were not
made, signed and sealed up in open town meet
ing?
A-The Governor and Council must act up
on the returns forwarded to the Secretary of
State. If they purport to be made, signed and
sealed up in open plantation or town meeting,
they constitute the basis of the action OF the
canyassing board. No provision is found in
the constitution, or in any statute OF this State,
by virtue of which they would be. authorized to
receive evidence to negative the facts therein
set forth They, therefore, have no such power.
The statement of municipal officers is, in that
respect, conclusive.
Q.-Is the return of two persons purportlng
to be the selectmen of town, valid and suffc-
lent evidence of the vote of the town, when 1t
appears that there were at the time of the
meeting at which the election was had but Two
selectmen of that town?
A-When a majority of the selectmen are
absent from a meeting for election purposes,
or, being present. neglect or refuse to act as
SUCH and to do all the duties required OF them,
the voters at such meeting may choose somany
seiectmen pro tenap0re as are necessary TO COM
plete the number competent TO 90 the duties.
r. S.. chap. q, sec. 20. In case OF death or the
remoavl of all the selectmen, two would be
+41oap o1,6 act The INJURY
is, if the return would be valid when there
should be but two selectmen lat the time OF
the meeting at which the election was mad.
If the other selectman had deceased prior 10
the meeting, the supervisors might act, and
their action would be legal. But the canvas
sing board are to be governed by the returns.
Evidence would not be admissible to prove the
fact that there were but two selectmen OF the
town. The Governor and Council cannot OIL
cially know that there are only two.
Q.-Can a person who is not citizen OF the
United States at the time be legally elected or
constituted Selectman OF the town!
"A person not citizen may be elected OF
constituted selectman so that his official acts
bind the town and are valid. So far as 1t al
fects the public such an one would be an offl-
Ger de tdcto, and clothed with apparent right
his acts would bind the town. Dane VS.. Derby,
81 Maine, 952), can officer de tdcto IS one VINO
comes into Office by the color OF legal ap-
pointment or election; his acts in that capacity
are as valid, so far as the public is concerned,
as the acts of an officer de jure; his title cannot
be inquired into collaterally." CHE People
VS.. Cook- Selden, 49, 'The precise detlnl-
ton of an officer de facto,' observes Blgelow,
C. J., in Fitchburg Railroad VS.. Grand juno
ton and Depot Company Il Allen, 557l, lis one
who comes in by the forms of law, and acts I'M
der a commission or election apparently valid,
but in consequence OF some lllega!lty IN capacee
ity or want of qualification, IS incapable OF
holding the office" Indeed, there is an entire
unanimity of opinion on this subject in all the
States of the Union where this question has
arisen, as we'll as in the courts OF the United
States But the fact of alienage is not allowed
to be proved This was determined in the
shown that the clerk was an alien, who could
neither read nor write the English language,
and where almost uncomfortable irregularities
existed; yet evidence outside of the returns was
held to be inadmissible, nor would such TACT
have any effect if it appeared in and by the re-
turn itself.
Off ballot has a distinguishing mark in
the Judgment of the Governor and Council,
such as would make it illegal under the statute,
have they authority to disregard it In their as
certainment of what persons appear to De
elected, where il appears by the official return
of the officers of the town that such vote was
received by the Selectmen, subject to the OBJ
lection, and its legality referred to the Govern
CT and Council for decision?
A.-The presiding officers are to determi ne
ing mark or figure, so that, if rejected, the
yoter'may procure ballot, if he chooses, to
which no exception can be taken; BUT II the
ballot have distinguishing marks or figures, 1t
is no part of the duty OF the officers OF the
town to make a report in reference thereto.
They should reject the ballot if offered when
it is within the prohibition of the statute.
The statute prohibits the rejection OF the
ballot latter it is received into the ballot
box" 1t is then to be counted. The Governor
ofh IN RI n w
question: their duty, is to count the votes, re-
CARELESS of the fact improperly set forth IN the
returns; they are nowhere constituted
tribunal with judicial authority to determine
what shall constitute distinguishing mark OF
figure, nor can they legally refuse "to open
and count the votes returned''-(54 Maine,
6O2) When the ballot has once been received
in the ballot-box, neither the selectmen nor
the Governor and Council can refuse to count
it,
Off the names of any persons appear In the
return without any number OF votes Delng
stated or carried out against them, either IN
words or figures is it the duty OF the Governor
and Council to treat those persons as having
the same number of votes as another person
received for the same Office, and whose name
is placed first in The return, if they lind dots
under the figures or words set against such 9TH
er persons name?
Aft the ditto marks or dots are placed I'M
der the figures or words of the first candidates
vote, the return should be counted. Where it
appears by the letters or figures IN the hrst
| line, and by ditto marks or by dots In the
| following lines, that the same class OF candl-
| dates received the same vote, there can be no
ground for rejection The word 'ditto" and
its abbreviation 3d." and the dots or marks
that stand for the word "ditto," are OF common
| use and have perfectly well-defned meaning
known to persons generally; that meaning,
should not be disregarded We answer the
question in the affirmative.
O-Haye the Governor and Council the legal
right to decide what kind OF evidence they
will receive, and what the mode OF proceeding
before them shall be, to enable them to deter
mine the genuineness of returns required by
the article and section OF the constitution
above mentioned?
Ave assume that the "genulneness OF
the return referred to relates either to the
signature of the officers signing, or to altera-
lions of the return. The Governor and Coun-
Gil have no power to reject the returns on
either ground, unless an objection in writing
is presented to them, setting forth that the
| signatures of such officers Tor some OF them)
| are not genuine, or that the return has been
altered after it was signed. Then notice thereof
| should be given to all persons interested, and,
| when adiudcating upon the facts, the Cover
| nor and Council should be governed IN the al,
| mission of evidence by the established rules OF
| evidence, in accordance with the law OF this
| state, The witnesses should be duly sworn,
that thew may be punishable for the crime OF
| perjury if they wllfully and corruptIy testl1y
| falsely. The Governor and Council have no
right to reject the returns for such cause with
| out giving the parties interested therein fair
opportunity to be heard. The genuineness of
the return in these particulars is to be pre-,
1 sumed, and this presumption remains until
| overcome by evidence produced as before said.
the Hos and 9 C9uno have ye oeG Se
same town, differing materially from each
| other in the number of votes returned as cast
for the same persons, but identical in all other
respects, both having been duly received at
the Secretary's office, and they have no evil
| dence to enable them to determine which is
| the true and genuine return, are they required
| to treat either of them as valid, and II So
| which?
A.-When two lists of votes are returned to
the office of the Secretary OF State by the CLERK
of any city, town or plantation, and both a: are
| duly certified, the return first received at the
office of the Secretary must be the basis OF the
action of the Governor and Council. Ii defec
tive, or not true copy of the record, it can be
| corrected, or the defects supplied only III ac
cordance with the provisions of the statute re,
! lating thereto This government rests upon
| the great constitutional axiom, that "all power