Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1880-01-29


10. Can the Governor and Council legal
ly administer the qualifying oath to the
members elect Of the House Of Represen-
tatives when on . yea and nay vote, as
shown by the record. only seventy three
members on both sides, inclusive. vote on
the motion to request the attendance OF
tho Governor and Council for that pur-
pose:
IL. eau a valid organization Of the
House be made under the revised statutes,
chapter 2, section %, when under the facts
as stated In question 10, . protest WAS
| entered at the time. that no quorum Was
manifest on the yea and nay vote. and
Notwithstanding thai protest the clerk re-
fused to put a motion to adjourn and the
Governor appeared and admin stered the
OATH
IL. Can the Governor and Council le-
| gaiiy administer the qualifying oaths to
tina members elect OF the Senate when only
twenty members, both sides inclusive. vote
on the motion to request their presence
tor that purpose, and OF that twenty, eight
though summoned did not appear 10 be
elected by the official returns under the
| constitution and the decision Of the court,
and were not in fact elected?
Answer-fhese three questions referring
to the qualification OF members by the
administration Of the required oath may
be answered together. BY the constitution
the oath Is TO be taken and subscribed In
the presence OF the Governor and Council.
BY the statute. Revised Statutes. chap. 2.
sec. %. the clerk OF the preceding House
shall preside until the Representative
| elect "shAil be qualified and elect .
speaker, and II no quorum appear he shall
preside and the Represe natives elect
ahal aHfnnpn lav N ia =
until . quorum appear and are qualified
aud a speaker Is elected"
Thus It will be seen that while By the
statute the clerk Is to preside until
quorum shall appear and be qualified. It Is
not provided either iu the constitution or
the statute that less number than .
quorum shall not be qualified. Nor can
the yea and nav vote on the motion to re-
quest the attendance Of the Governor and
Council for the purpose OF administering
the oath be deemed Of any importance.
II the Governor and Council had appeared
without motion on a vote their authority
would lave been the same. We therefore
answer that the qualifying oaths under the
constitution or statute may be admin! !ster-
ed 10 the members elect Of either branch
In aoy numbers though quorum must sp-
pear and be qualified before proceeding to
Su SiSNsAoH VI oPCoAcT, 6uu u lu0 "uolc
number OF votes for speaker Is less than a
quorum and there Is nothing upon the
record TO show that a quorum WAS present
and acting, there would be no election.
Is. At what date In the year 1880 do the
terms OF Office Of the following State Of
fcers elected In January. 1879, expire
the Governor, the Executive Council, the
Secretary OF State, the Treasurer. the
Attorney General. and the Adjutant Gen
eral?
Answer-The Governors term Of office,
and also that OF his Council, expired at
midnight following the frst Wednesday OF
January, lSS0. The term Of the other OIL
GERS mentioned In the question will expire
when their several successors are elected
as provided In the constitution.
IL. When the terms OF Office OF the Gov
ernor and Council have expired, or their
Offices are vacant and there Is neither Gov
ernor nor Council. can the members elect
Of the Senate ana House OF Representa-
tives be legally qualified before . magis-
,fate appointed and commissioned by the
Governor with the advice Of the Council
under dedimus pro testeDs by virtue of the
revised statutes, chapter 2, sections So aud
So. or BY any other provision OF lswg
"a When the terms Of office Of the Gov.
ernor and Council have expired, the acting
President OF the Senate has refused 70
qualify the duly summoned members elect,
and the acting House of Representatives.
made up of 62 members legally summoned
and fourteen Others summoned but not 10
fact elected and not appearing to be elect
ed by the official returns under the decis-
100 OF the court, refused to admit to seats
the fourteen members elected specified 10
question 10 or the nine additional men,
bers elect specified In question 10 or any
one OF them. can the &c members specified
by question 10. or the s5 members specified
by question 10, after being called TO order
by one OF their members and . roll Of the
members elect read IS they appear by the
ofiicisl returns, be qualified before =
dedimus justice and thus constitute and
organize q legal House Of Representa-
iiycs!
25. When the terms Of Office OF the Gov
ernor and Council have expired and the
scting Senate. made up Of the members le-
gally summoned and s others summoned
but not In fac, elected and not appearing
to be elected BY the returns under the de-
cision OF the court refuse 10 admit the
members TO seats, can the members thu.
denied seats acting with eleven members
elect duly summoned. after being called to
order BY one Of their number, and . roll
of the members elect being read as they
appear BY the Official returns and the de-
eision Of the court, be qualified before .
dedirsSs Justice snd thus constitute and
organize legal SenAtef
Answer-To the l&th, 2S.h and 25tb
questions proposed we answer Is follows:
la the general provisions Of the constitu-
ton, article 8. certain 0aths or aftrmations
are provided for persons elected. appoint
sd nr mi q siAneA n the nfNcAa fhePatn
mentioned. 1t appears that those before
whom the prescribed 0aths were TO be ad-
minlstered refused to act and that now
there is no existing Governor aud Council
before whom they can be administered.
The oath Is prescribed. The terms are the
essential features. Its binding force de-
pends upon It's terms, not on the magis-
rate BY whom It Is administered. II there
Is no Governor and Council, or being Q
Governor and Council they refuse to sd-
minister the oath to one Representative or
to ail-ior there can be . refusal 70 all
equally as to one-what Is the result? Ii
snarchy 10 triumph? Can the government
be destroyed or its action psralyzed be-
cause there Is no Governor and Council
before whom the prescribed oath 10 TO be
taken? We think not. The prescribed
oath from the necessity Of the case. may be
taken before . magistrate authorized 70 ad-
minister oatAs. The members must be
sworn before they can sct. 1t Is BY their
action that Governor and Council there
after Is to be elected and the government
continued. 1t cannot be presumed that the
trainers Of the constitution had in c0ntem-
plation that the oath had better not be ad-
ministered at all than administered BY any
other officer than the one designated there
10. This is one OF The most reliable tests
BY which to distinguish directory from q
mandatory provision.-State vs.. Smith, 81
Maine, 32S.
IL. When the term Of one Governor bas
expired BY law and no successor has been
chosen, can the president Of the Senate be-
come acting Governor u ct his election 70
votes only are cast for and against him
and those 20 votes are made up - de-
scribed In question 19f
Answer-Our reply to the 18th question
10 10 the negative; thst one whose only
title to the Presidency 70 the Senate Il BY
virtue VI such an election cannot become
the acting Governor because he 10 not .
legal President OF the Senate. II Of the
twenty voting st such choice Of President
Of the Senate eight did not appear 70 be
elected BY the omciA returns under the
constitution and the decision Of the court,