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


enumerated constitute aud organize legal
House Of Representative together with
nine other c2ea6ers elect. Who were in fact
elected and sppeas BY the oflicial rctsrus
and bv the decision OF the court to be
elected. though the nine sests Aforesaid
are claimed by other contestanss. who were
summoned by the Governor and Council
but were not In fact elected and do not ap-
pear to be elected by said Official returns
under the decision OF the court1
Answer-It will follow from the answers
TO questions 81 and q. that this question for
the reasons and upon the circumstances
there referred to, must be answered also
In the Affirmative
IS . member OF the House Of Representa-
tives aud returns the same to the Governor
before the assembling Of the Legislature
and resigns his seat, 10 1t competent for
him to recall and cancel that resignation
after the Legislature hss assembled and
organized. or can he be compelled to At
tend as a memberf
Answer-One vino, under such crcum-
stances, returns his summons. and resigns
his seat, thereby makes a vacancy in the
House which Is to assenble-Which vacau-
cy may be filled by new election"
Under the provisions OF Art. w.. Part !, {
6. Of the constitution.-thst the proper
steps may be taken by the municipal o.
ncers 70 that end It 10 necessary to regard
such resignation irrevocable. II when
once made 1t could be recalled 1t will, the
municipal Ofhcers could never know that
the seat was vacated BY resignation. One
who has thus resigned cannot be compelled
to attend - . member; he 10 no longer Q
member. The language Of the court touch
ing the power OF the Houses 70 compel the
attendance Of their members (in the con-
stitutionAl opinion given iu IS Maize, S63.
applies only to those who, without vacat-
ing their seats, absent themselves from the
sessions OF the body to which they were
elected. II would be alike contrary TO the
spirit Of our constitution and detrimental
to public policy to hold that man might
be compelled to accept an Office OF such
character. We therefore answer the Ques-
ton Ia the negative.
"a. In case the oficiai returns OF the
votes cast for Governor should be lost,
concealed or inaccessible by accident or
fraud. Is IL competent to count the votes
for Governor by using certified copies OF
the official record OF the several cities,
towns and plantations Ia the State?
Answsr-In our recent answer to Ques.
tons presented BY the Governor We said 10
substance that one OF the objects OF the
constitutional requirements OF . record OF
the vote, 70 be made at the same time and
authenticated IN like manner with the re-
turn, was to guard against the possible re-
suit OF mistake, accident or fraud In the Of
hcial return OF votes. When such returns
OF the vote for Governor are lost, concealed
or inaccessible BY accident or fraud, the
result OF the election may still be ascer-
tanned ny using certified copies Of the Of
ncial records mentioned In the question.
Neither the carelessness nor the turpitude
Of the officers charged with the making or
the custody OF the returns can be suffered
to defeat the will OF the people as expressed
In the election so long Is the Legislature
can ascertain it from the records thus made.
True, the constitution provides tina, the
Secretary OF State shall on the nrs. We'd
nesday OF January lay the lists before the
Senate and House Of Representatives,. but
this provision Is directory. and failure to
comply with 1t cannot defeat the right OF
the Legislature TO ascertain and declare
the result OF the election. When the fra0-
ers OF our constitution and our Legislators
have taken such pains TO perpetuste the
evidence Of votes cast and to guard that
evidence against the effect. not only of &C.
cident, bu. Of human hllibiity or perfidy,
IL Is not to be thrown away because the
SecI etsry OF State fails or Is unable to
comply with this direction. The cons.itu-
tion Is TO be construed when practicable In
all Its parts. not SO as to thwsrt, but 50 A.
TO advance its main object, the continu-
ance and orderly conduct of the govern
ment by the people. We answer the Ques-
ton in the affirmative.
The questions before US are attested In
the usual mode and purport TO come from
organized bodies. They are OF the utmost
importance. Our answers are entirely
based on the Assumption Of the existence OF
the facts as therein set forth. We cannot
decline an answer ir We would.
In case ike the present, the remarks
OF chief Justice Marshall, In Cohens vs..
Virginia, are particularly applicable. "it
Is most true" he says THAT this coart will
not tAse jurisdiction IL It should not. but
IL Is equally true that II must take jurisdic-
ton II II should. The Judiciary cannot. as
ths Legislature may. avoid = measure be-
cause approaches the cobdaes OF the
constitution. wecannot pass it BY because
u 10 doubtful. With wnatever doubts or
~hsfevsr difficulties . case may be attended
ve must decide II. IL it be brought before
us. We have no 0ors right TO decline the
exercise Of jorlsdiction which Is given than
10 usurp thar ~hlch Is not given. The one
o. the other woald be sressos to the cs,.
sti'utlon. Questions may occur which W.
would gladly avoid. bot We eanno; avoid
them" JOHN APPLETON.
CHARLES W. WALTON,
WILLIAM q. BAkRows,
CHARLEs DASFoRTH,
JoHS A. PETxKs,
ARTEAAs LisBEY,
JOSEPH W. SYMoNDs
To Joseph A. Locke. President Of the Sen
ate. and George Weeks, Speaker Of the
House OF Representatives,. Augusta.
Maine.