The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1880-01-05
BIZ TELEGRAPH.
THE LIGHTNING STRIKES.
THE SUPREME COURTS RE-
PLY TO GOV. GARCELON.
Councillor FOgg's Law Receives
a Severe Blow.
THE WILL OF THE PEOPLE
TO BE RESPECTED
And Not to be Defeated by
Quibbles.
THE COUNCIL DEFEATED ON
EVERY DISPUTED POINT.
The Courts Opinion Unanimous.
THE COUNCIL DEF EATED ON
EVERY DISPUTED POINT.
The Courts Opinion Unanimous.

this afternoon, in answer to the questions sub
mitted by the Governor:
BANGOR, Me-, Jan. 3. 1880.
To the Hon. Alonzo Gdrcelon, Governor OF
Maine:
The undersigned, Justices of the Supreme
Judicial Court have the honor to submit the
following answers to questions proposed:
O.-When the Governor and Council decide
that there is no return from a city on which
Representatives can be summoned to attend ana
take their seats in the Legislature, is 1t their
duty to order new election, Or is it competent
for the house of Representatives, if it shall ap-
pear that there was an election OF such Repre-
sentatives, to admit them to seats, though no
return thereof was made and delivered to the
office of the Secretary of State?
A-No authority is given the Governor and
Council, when there is no return, to order
new election. When the seat of a Representa-
tive has been vacated by death, resignation or
otherwise, provision is made by r. S., chap. 4,
sec. So, A and At, for the filling OF existing va
cancies. By these provisions, whenever the
municipal officers therein mentioned have
knowledge by any means of the death OF a
Representative-elect, or of vacancy caused
in any other way, it is their duty to order a
new election. If 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 Thereon
be made to the Secretary of State. The Rep
resentative is not to be deprived of his rights
because municipal officers have neglected their
duty.
O.--Is it competent for the Governor and
Council to allow the substitution OF other evil
dence in place of the returned copies OF such lists
as are provided for in article 4, part l, section
5, of the Constitution, to enable them to deter
mine what persons appear to be elected Repre.
sentatives to the Legislature by plurality OF
all the votes returned?
A-This refers to the substitution authorized
Nv, +lo Of ,f chan 90 The COnStltu-
ton calls for a return that is regular in essen
tial forms, and which truly represents the facts
to be described by it, but much of the Constr
tutional requirement is directory, merely. 1t
does not aim at depriving the people OF their
right of suffrage, or their right OF representa-
ton, for formal errors. Where the Constitu-
tional requirement has not been fully, or has
been effectively executed by town otfcers 1t
is in aid of the Constitutional provision to sup
ply the omission or deficiency as nearly and as
correctly as may be. Such is the purpose OF
the statute 1t is competent forthe Governor
and Council to allow an erroneous return, OF
one that is informal or defective, to be aided
and corrected by an attested copy OF the rec
ord, as by statute provided. The object OF the
Consti tional provisions respecting elections is
to furnish as many safeguards as may be
against failure, either through fraud or mis-
take, correctly to ascertain and declare the
will of the people as expressed in the choice OF
their officers and legislators. Hence the re-
quirement that not only shall the returns be
made on the spot in open town meeting, but
record of the vote shall be made at the same
time and authenticated in like manner. Ii,
by accident or wilful neglect, there is an error
or omission in the return, what can be safer
than to refer to the duplicate statement by the
record to correct it? This the statutes of 1877,
chap 212, allows to be done, and while the
language is permissive, it falls within the
well-known legal rule that, when public rights
are concerned, it shall be construed as manda-
tory-a command clothed in the language OF
courtesy, so clothed because it could not be
doubted that high and honorable officials
would, unhesitatingly, avail themselves OF all
lawful means to declare the result of an cleo
ton, according to the actual fact, in obedience
to the fundamental principles OF popular gov
eminent. The Governor and Council are bound
by the statute. 1t is mandatory upon them.
It imposes duty to the public that must be
performed. Whether the act referred to con-
travenes the Constitution in allowing oral evil
dence to be received, to show the intention OIL
voters in casting their ballots, is another part
of the statute, which we are not now called
upon to consider. If unconstitutional in the
latter respect, that would not affect the consti-
nationality of the other separate and lndepen-
dent provision.
Q.-Is.a return signed by less than majority
of the selectmen of town or the aldermen OF
a city valid within the requirements OF same
section?
A.-To this question we answer, that, WIN lie
a town may legally elect as many as seven Sc
lectmen, the we'll known practice is to elect
only three, and, in such cases. return, to be
valid, must be signed by a majority of them,
because by no possibility can less number
constitute legal quorum; but the rule is 9TH
erwise with respect to the aldermen OF cltles
Most of our cities are required by law to have
as many as seven aldermen, and none OF en-
we believe, has less than five. 70 constitute
quorum, it is only necessary to have MAORI ty
of the whole number present, and when such a
quorum is present, majority OF the quorum
may do business. Surprising the number to
be seven, four would constitute legal quor-
UNI, and three being majority of that quor-
UNI could legally act, although the fourth
should refuse to join them, or should oppose
their action. Consequently, if return from a
city having five or seven aldermen Is signed
by three of them, it may be valid and legal
return; because only four may have been pres
ent, and, in such case, three lbelng major
ity of those presently could legally act,although
the fourth should oppose their action and re-
fuse to join them. When such return is laid
before the Governor and Council they cannot
know, and they have no right to assume, that
the return is not valid. 1t is the duty of the
aldermen to be session and examine the ward
returns, compare and declare the votes, and OF
the clerk to make a record thereof. From
that record, a certified copy of which is re-.
turned, the law pres umes that quorum OF
the aldermen were present. The law with re-
spect to quorums and majorities is correctly
stated in Danes abridgment, $50, and l Dill
Ions Municipal Corporations sec. ZIG and 2l1.
In the latter work it is said that bodies COM
posed of definite number act by maloritles OF
those present, provided those present constr
tute majority of the whole number; or, to
use Mr.. Danes illustration: eff the body CON
sists of twelve councilmen, seven is the least
number that can constitute a valid legal meet
ing, 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 a9tnorl-
ties. The rule applicable to such cases is sim
liar to that which applies to our House OF rep
resentatives The whole number of Repre-
sentatives, established by law, is 151. A ma
iority (that is rs members) constitutes quor-
um to do business. If there is actually that
number present. and majority of them (that
is 80 members) vote in the affirmative, a valid
law can thereby be enacted, or other business
transacted. If less than rs members are pres
ent, then no business can be done, except TO
adjourn or compel the attendance OF absent
members This is familiar law and illustrates
the principle applicable to the aldermen OF
cities, and shows how and why return signed
by less than q majority of the whole NUMBER
may be, and, so far as the Governor and Coun-
Gil are concerned, is conclusively presumed to
be valid. They have no right to go behind the
returns. .
O.-Is a return by the aldermen OF city
which does not give the number of votes cast
for each person voted for as a member OF the
Legislature, and does not show WllaI persons
were voted for as such member in Eany one Of
the several wards of such city, valid return
within the requirements of the same section?
EA.-We are not sure that we comprehend
the full scope of this question. Our answer
| will meet all of its supposed purposes. 1t is
immaterial whether the aldermen returned to
the Governor and Council the detailed vote OF
each ward separately, or whether they return
ed the result of all the votes of all the wards
| for each candidate together. Either mode is
a satisfactory way of reaching the same result
| Substance only is sought for in such matters
| Nor is it material matter that, instead OF re-
| turning all the names of persons voted for,
| there is return of votes as scattering, pro
| vided that, however such votes may be added
| or subtracted, some candidate or set OF candl.
| dates appear to be chosen by plurality OF the
| votes thrown. The Governor and Council
| cannot officially know, nor have they the right
to ascertain that the votes returned as scatter.
| ing were not actual ballots with the word
| scattering written thereon. Norris the election
| of candidates to be chosen by plurality OF
votes to be defeated, because the whole num-
Der of votes or ballots may be stated erroneous
| ", or not stated at all. The Constitution con-
| tains no such requirements, and the statutory
| provision requiring it is entirely unimportant
and inapplicable to cases where plurality Of
votes elects. 1t is a well settled rule OF con