The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1880-01-05
The Maine Com pIication.
GOVERNOR GARCELoN,s QUESTIONS ANSWERED

signed this afternoon. in answer 10 the Ques-
tons submitted by the Governor:
10 Hon. Aionzo Garceion, Governor o.
Maine;
Bangor, January 3.-The undersigned
justices Of the Supreme Judicial Court
have the honor 10 submit the following an
swers to the questions propounded-fTht
answers are numbered to correspond with
the questions as published Friday morning
the % Instant:
Answer /. No authority is given to the
Governor and Council when there is no re.
turn TO order new election. Wbeh the
seat Of 4 representative has been vacated by
death, resignation, or otherwise, the prOvi-
sion Is made by the Revised Statutes (chap-
ter 4, sections SO, A. and Az for filing Of
existing vacancies. By these provisions
whenever municipal officers therein men,
toned by any means have knowledge OF the
death OF a represenlative-elect, or Of a va
cancy caused ia any other way, ii is their
duty to order q new election. II it appears
to the House Of Representatives that there
was an election OF representatives in fact
they should admit them TO their seats though
no return thereof was made to the Secretary
OF State. The representative is not TO be
| deprived OF his rights because municipal
| officers have neglected their duty.
Answer 2. This refers to the substitution
authorized by the act Of 1877, C. PIP. The
Constitution calls for return that is regu-
lar in essential forms, and which truly rep
resents facts 10 be described by il. but
much OF constitutional requirement is di-
rectory merely. Ii does not aim at depriy-
ing the people of their right OF suffrage or
OF their right OF representation for formal
errors, but aims ut avoiding such result.
Where the constitutional requirement has
not been fully or has been effectively exc
cuted BY town officers il is the aim OF the
constitutional provision TO supply the omiS-
sion or deficiency as nearly and is correctly
rs NAV be. such is the purpose OF the
statute. 1t Is competent for the Governor
and Council TO allow an erroneous return,
or one that is formal or defective. to be aided
and corrected by an attested copy of record.
rs by statute provided. The object OF the
constitutional provisions respecting cleo
tons is 10 furnish as many safeguards as
NAV be against failure, either through fraud
or mistake, and correctly TO ascertain and
declare the will OF the people as expressed
in the choice Cf their officers and legislators;
hence the requirement that not only shall
returns BE- made on the spot, in open
town meeting, but record OF the vote
shall he made at the same time.
and authenticated. In like manner il, By
accident or wilful neglect, there is an error
or omission in return. what can be safer
than 10 refer TO the duplicate statement by
record to correct it? This the statute OF
1877, chapter 212, allows TO he done; and,
while the language Is permiSsive, il falls
within the well-knOwn legal rule that wheu
public rights are concerned, ii shall be con-
strucd as Il mandatory command, clothed in
language OF cOurtesy-so clothed because it
could not be doubted that high and honorable
officials would unhesitatinglv avail them
selves of all legal means TO declare the result
OF an election according 10 the actual fact
in obedience to the fundamental principles
OF popular government. The Governor
and Council are bound by the statute. II
is mandatory upon them. IL imposes
duty TO the public that must be performed.
Whether the act referred To controvenCs the
Constitution in allowing oral evidence to
he received to show the intention Of voters
in casting their votes is another part OF
the statute which we are not now called
upon TO consider. IL unconstitutional in
the latter respect, that would not affect the
constitutionality OF the other separate and
independent provisions.
Answer 3. TO th. question we answer
that while town may legally elect as many
as seven selcctmen, the wel-knOwn prac-
tice is to elect only three, and in such cases
the return to be valid must be signed by a
maj ority OF them, because by no possibility
can less number constitute a legal quo
rum: but the rule is otherwise with re-
spect 10 aldermen Of cities. Most OF our
cities are required by law to have rs many
as seven aldermen, and none OF them, we
believe, have less than five. To constitute
quorum it is only necessary to have
a majority OF the whole present,
and when such QUORUM is pres
ent the majority Of the quorum may
do business. Surprising the number TO be
seven, four would constitute LEGAL quo
rum, and three, being q majority OF that
quorum, could legally act although the
fourth shoIld refuse to join them or should
oppose their action; consequently, II re.
turn from a city having five or seven alder
men is signed by three OF them it may be
valid and legal return, because only four
may have been present, and in such case,
three being majority OF those present,
could legally act, although the fourth
should oppose their action and refuse TO join
them. When such return is laid before
the Governor and Council they cannot
that the return is not valid. 1t is the duty
OF the aldermen TO be in session and eX.
anime the ward returns, compare and de-
clare the votes; and the duty of the clerk
is to make a record thereof. From that re-
cord, a certified copy Of which is returned,
the law presumeS that Il quorum OF alder
men was present. The law with respect TO
quorum and maiorities is correctly stated
in Dares, Abridgement $50, and ]
DillOn's Municipal Corporations, sections
PIG and 2l7. In the latter work it Is
laid that bodies composed OF a definite num-
Der act by maiorities OF those present, pro-
vded those present constitute a majority Of
the whole number, or, TO use Mr.. Dafe's |
illustration elf body consists OF twelve
cOuncilmen, seven is the least number that
can constitute valid meeting, though four
OF the seven may act"; and so far as we
are aware the law is so stated in substance
by all ancient and modern authorities. The |
rule applicable TO such cases Is similar 10 |
that which applies to our House Of Repre-
sentatives. The whole number OF repre-
sen'aliyes established by law is 15l. A |
is, 70 members constitute |
a quorum TO do business. III there is |
actually that number present and a majority |
OF ihem-that is, thirty-nine members-yote |
In the Affirmative, valid law can thereby |
be enacted, or other business transacted. II
less than rs members are present then |
no business can be done except to adjourn
or compel the attendance ofabsent members.
This Is a familiar law, aud illustrates the
principle applicable to aldermen OF cities,
and shows now and why return signed by
less than majority OF the whole number
nay be, and, so lar as the Governor and
Council are concerned. Is conclusiyely pre-
.nmed IN no valid They baya M rioht IN |