Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1880-01-05


unanimous opinions of the Supreme Judicia
Court, finished and signed this afternoon in
answer to questions submitted by the Cover
nor:
To the Honorable .4ioa-o Garrelon GorernoI
of Maine:
BANGOR, January Sd. 1880.
The undersigned, u.tices of the Supreme
Judicial Court, have the honor to submit the
following answers to the questions proposed
Cues. /. When the Governor and Council
decide that there is no return from city, on
which representatives can be summoned e
attend and take their seats in the legislature
is it their duty to order a new election; or is
it competent for the house of representa-
tives, if it shall appear that there was an
election Of such representatives in fact, to
admit them to seats, though no return there
of was made and delivered into the Office OF
Secretary of State?
Ans. No authority is given to the Cover
nor and Council, when there is no return. to
order a new election. When the seat of a
representative has been vacated by death,
resignation, or otherwise, provision is made
by Revised Statutes chap. 4, secs. IS, ~. ~.
for the filling of existing vacancies. BY these
provisions, whenever the municipal officers,
therein mentioned, by any means have knowl-
edge of the death of representative-elect, or
of a vacancy caused in any other way, it is
their duty to order new election. If it ap-
pears to the House of Representatives, that
there was an electicl of representatives in
fact, they should admit them to their seats.
though no return thereof was made to the
Secretary sof State. The representative is
not to be deprived of his rights because mu-
nicipal officers have neglected their duty.
CUES. 2. Is it competent for the Governor
and Council TO allow the substitution of other
evidence in place of 1.-THE returned copies of
such lists as are provided for in article t. part
first, section 5. of the constitution, to enable
them to determine what persons "appear to
be elected' representatives to the legislature
''by plurality Of all the votes retarned'"
Ans. This refers to the substitution author
lied by the act of 1877, chap. PIP. The
Constitution calls for a return that is regular
in essential forms, and which truly represents
the facts to be described by it. But much of
the constitutional requirement is directory
merely. 1t does not aim at depriving the
people of their right of suffrage or their right
of representation for formal errors, but aims
at avoiding such result. Where the con-
stitutional requirement has not been fully,
or has been effectively, executed by town
officers, it is in aid of the constitutional pro-
vision to supply the omission or deficiency as
nearly and as correctly as may 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 informal or
defective, to be aided and corrected by an at
tested copy of the record, as by statute pro-
vided. The object of the constitutional pro-
visions respecting elections is to furnish as
many safeguards as may be against failure,
either through fraud or mistake, correctly to
ascertain and declare the will of the people
as expressed in the choice of their officers and
Legislators. Hence the requirement that not
only shall the returns be made on the spot, in
open town meeting, but a record of the vote
ted in like manner. IT. 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 made in the record to
correct it? This the statute of 1877,
chapter 2l2, allows to be done. And while
IT,, language is permissive, it falls within the
well known legal rule, that when public rights
are concerned it shall be construed as man
datory--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
ernment. The Governor and Council are
bound by the statute. 1t is mandatory upon
them. 1t imposes a duty to the public that
must be performed. Whether the act re-
ferred to contravenes the constitution in al
lowing oral evidence to be received to show
the intention of voters in casting their votes,
is question raised by another part
of the statute, which we are not
now called upor to consider. If uncon-
stitutional in the latter respect, that would not
affect the constitutionality of the other sep
arate and independent provisions.
Qucs. 3. Issa return, signed by less than a
majority of the selectmen of a town, or the al
dermen Of city, valid within the require
ments Of the same section?
Ans. To this question we answer that
while town may legally elect as many as
seven selectmen, the well-known practice is
to elect only three, and in such cases a re-
turn, to be valid, must be signed by a MAORI
ty of them; because by no possibility can a
less number constitute legal quorum. But
the rule is otherwise with respect to the al
derrlen of cities. Most of our cities are re-
quired by law to have as many as seven al
dermen, and none of them we believe, have
less than FIVE. To constitute quorum it il
emily necessary to have a majority Of
the whole number present, and
when such . quorum is present
a majority of the quorum may do business.
Surprising the number to be seven, four
would constitute legal quorum; and three