The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1880-01-08
Telegmphie News.
DOMESTIC.

DON ESTIC.
BANGOR, Me-, January 3.-Tha iol-
lowing is the full official text 5f the
Supreme Judicial Cour,, finished and
signed this evening in answer 10 the
questions submitted NJ Governor Gar.
celou, Governor of Msine:
BANG IL, Jsnusiy S-The under
signed, Justices q: the Sdpsszne jedi
cisl Court, have the honor 10 sucmi,
the following answers 10 questions
propounded:
1. No authority is given 80 the Gov
ernor and council when there is no re-
turn to order a new election. Wheu
the ,eat OF q representative hiss been
vscated BY destb, resignation OF other
wise, provision Is made by the revised
statutes, chapter 1, sections 80. "A
and AZ for the Il ling OF the existing
vacancies by these provisions, when-
ever the municipal officers therein
mentioned, by any means have 3
knowledge of the death of the repre-
sentasives elect. If the vacancy is
caused in any other way, it is their
duty to order new election. Ii it
appears to the House of Representa-
tives that there was an election of rep
resentatives, 1t is fact that they
should admit them to their seats,
though no return thereof was made to
the Secretary of the State A repre-
sentative is not to be deprived Of his
rights because the municipal officers
have neglected their duty.
. Thia rafara
authorized by an act of 1877, chapter
2l12, of the Constitution, which calls
for the return that is regular in its es-
sential forms, and which truly repre-
cents the facts to be described by as
but much of the coz stltutional require
ment ls discretionary merely; 1t docs
not aim at depriYing the people Of
their right of suffrage or their right of
representation for formal errors, but
aims at avoiding such result. Where
the constitutional requirement has not
been fully complied with or has been
detectively executed, it Is IN aid of the
constitutional provision to supply the
omission or deficiency, as nearly and
as correctly as may be. Such is the
purpose of the statute. It is compe-
tent for the Governor and the council
to allow an erroneous return, or one
that is formal and defective, to be
aided and corrected by an attested copy
of the record, as it is by the statute
provided that the object of the corsti-
tutional provisions respecting elections
Is to furnish as many safeguards as may
he against failure, either through
fraud or mistake, to correctly ascertain
and declare the will of the people, as
expressed in the choice of their officers
and Legislators, hence the require
ments. Not only shall the returns be
made on the spot in an open town
meeting, but record of the vote shall
be made at the same time and anthem
ticsted. II, by accident or willful neg
lect, there is an error or omission in
the returns, what can be safer than to
refer to the duplicate of the recorder
correct it. This the statute Of 1877,
ehapter 212, allows it to be doae, and
while the Language is -permissiye, it
falls within the well known legal rae
that where public rights are concerned
it shsll be construed as a mandatory
command, clothed In the language of
courtesy, and it is so clothed because
it could not be a doubt but that the
high and honorable officials could un-
hesitatingly avail themselves OF all the
legal means to declare the result OF
election according to the actual facts,
in obedience to the fundamental prin-
cIples of the government. The Gov
ernor and council are bound by the
statute and Is mandatory on them.
1t imposes the duty to the public that
must be performed. Whether the act
referred to contrayenes the Constitu-
ton in allowing oral evidence to be
used to show the intention OF the Yo-
tels in casting their votes, is another
part of the statute which we are now
called upon to consider. II unconstl-
tutional In the latter respect, that
would not affect the constltutionality
of the other. They are seperate and
independent provisions.
8, To this question we answer that
while the town may legally elect as
many as seven selectmen, who are well
known to the practice, IS to elect only
three, and in such cases a return to be
valid must be signed by majority of
them, because by no possibility can
less number constitute legal QUO
rum, but when it is otherwise with
respect to aldermen of cities, most OF
them are required by law to have as
many as seven aldermen, and more Of
them are believed to have less than five
to constitute a quorum, and it is ouly
necessary to have majority of the
whole present, and when such quorum
present majority, such quorum may
do business, supposlng the number to
be seven. Four would constitute q
legal quorum, and three being a major
ity of that quorum, could they legally
act, although the fourth should re-
fuse to JOIN them, or should
oppose their action, conse quently If
return from city having five OF
seven aldermen is signed by three of
them, it may be valid aud legal rer
turn, because only four may have been
present, and in such case, three being
a majority of those present, could le-
gally act. Although four should oppose
their action and refuse to join them
when such return IS laid before the
Governor and council, they can't know
and have no right to assume, that that
return is not valid, and 1t is the duty
of, the aldermen to be in ses Ion and
examine the ward returns, compare
and declare votes; and it is the duty
of the clerk to make record thereof,
from . h. ronAr1 nxrfsE.1 NJ
which is returned. The law presumes
that quorum of aldermen was pres
ent. The law with respect to quorums
and msjorities is correctly stated III 5
Danes Abridgment, $50, and Dillon's
Municipal Corporations, sections 216
and ait. In the latter work it is said
that bodies composed of definite num-
bers act by msjorities of those present,
provided there is present a constitu-
tional majority of the whole number,
or, to use Mr.. Danes illustration, if a
body consists of twelve councilmen,
seven Is the least number that can con-
stitute valid meeting, though a ma
iOrity of seven may act and, so Gar as
we are aware, the law is so stated in
substance by all ancient aud modern
authorities. The rule applicable TO
such cases is similar to that which ap-
plies to our House of Representatives
The whole number of Representatives
established by law is 151; a majority of
that number, CT rs members. consti-
tute q quorum to do business. If there
d actually that number present ana a
of them, that is, 80 members,
Vete in the affirmative, valid law can
thereby be enacted or other business
II less than 76 members