Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-01-05
BOGUS CERTIFICATES OF ELECTION.

Mos. Shameless Judicial Opinion.
BOGUS CERTIFICATES OF ELECTION.
Boston, Jan. Especial dispatches from Au-
gusta state that rumors prevail in some coun-
ties that certificates If election have been is
sued blank, bearing the seal of the secretary
of state and given to Republican members who
have been counted out. Appended to the GER
tifcates are the words ''You will be protected"
WILL NOT TAKE HIS SEAT.
HARRINGTON, Me-, Jan. 3.-Louis Voler, Dem
ocrat, counted in by the fusionists as repre-
sentative, has returned his certificate to the
governor, believing the reason given for the
Acknowledgement of Pennington is not suffi-
Gent to justify his acceptance of the position.
THE OPINION OF THE JUDGES.
AUGUSTA, Me-, Jan. 3,-The opinion of the
Judges on the sqrestions submitted by Gov
Garcelon is expected to be promulgated at
Bangor to-day. There are Indications that the
opinion will be full and sweeping, covering
most of the points at issue. The Republicans
are highly elated, and are looking for sweep
ing endorsement of the Republican position,
and that it will give them control "f the legis-
lature beyond doubt. The opposition appears
cannot give any certain or substantial reason
for depression. They say that tho legislature
will be duly and promptly organized,
Wednesday, by the appearance of the
certiicated members, and legislation will
promptly proceed, notwithstanding the boast
of the Republicans that no quorum will be
present. Four fusion members have already
indicated that they will not accept their certi-
fcates. Eugene Hale and Stephen ID. Lind
sey, member of Congress, came here this morn
ing. Lindsey expresses the opinion that the
counting out will not succeed and that the
members will do justice to those who have
been deprived of their seats. 1t is known no
official orders were issued for the employ
ment of armed police at the State house. Most
of the State officials say they disapprove of the
act. few members-elect are here. More will
come by the night train.
TEXT OF THE OPINION.
BANGOR, Jan. 3.--The following is the of
fetal text of the unanimous opinion of the SUI
preme judicial court, finished and signed this
afternoon, in answer to the questions submitted
by the governor:
To the Honorable Alonzo Garcelon, governor
of Maine:
BANGOR, Jan. 8, 1SS0.-The undersigned,
justices of the supreme judicial court, nave
the honor to submit the following answers to
the questions proposed:
Question-When the governor and council
decided that there is return from city on
which representatives can be summoned to at
tend and take their seats in the legislature is
it their duty to order new election, or is it
competent for the House Of Representatives. if
it shall appear there was an election of such
Representatives in fact to admit them to seats,
though no return thereof was made and de-
livered into the Office of the secretary of state?
Answer-No authority is given to the gov
ernor and council when there is no return, to
order new election. When the seat of q rep
resentative has been vacated by death, resigna-
ton or otherwise, provision is ys33e by revised
statutes, chapter 4, sections 3S, A, A. for the
filling of existing vacancies. These provisions,
whenever the municipal officers therein men
toned by any means have knowledge of the
death of representatives eject, or of a vacancy
caused in any other way, it is their duty to or
der 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 thereof was
made to the secre tary of state. A representa-
tive is not to be deprived Of his rights be ause
the municipal officers have neglected their
duties.
Question-Is it competent fo- the Governor
and council to allow the:substitution of other
evidence in place of the returned copies of such
lists as are provided for in article 4, part LIST,
section 5 Of the constitution, to enable them
to determine what persons appear to be elected
Representatives to the legislature by plurality
Of all votes returned?
Answer-This refers to the substitution au-
thorized by the act of 1877, chapter 2l2. The
constitution calls for 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 of their right
of representation for formal errors,
but aims at avoiding such result where the
constitutional requirement has not been fully
or has been effectively executed by town Off
GERS. 1t is in aid of the constitutional provis-
ion to supply omission or deficiency as nearly
and as correctly as may be. Such Is the pur-
pose of the statute. 1t is competent for the
governor and council to allow an erroneous re-
turn, or one that is informal or defective, to
be aided and corrected by an attested copy of
the record as by stature provided. The object
of the constitutional provision 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 returns be made on the spot in open
town meeting, but record of the vote shall
IN like manner. If by accident or wilful neglect
there is error or omission in the returns, what
can be safer than to refer to the duplicate
statement of record to correct it.? This the
statute of 1877, chapter 212, allows to be DONE
and while the language is permissive, it falls
within this well known legal rule that when
public rights are concerned it shall be con-
strued as a mandatory command clothed in
language of courtesy, 80 clothed because it
could not be doubted that high and
honorable officials would unhesitatingl avail
themselves of all lawful means to declare the
result Of an election according to the actual
fact in obedience to the fundamental principles
of popular government. The governor and
council are bound by the statute. 1t is man
datory upon them. 1t imposes a duty to the
public that must be performed Whether
the act referred to controvenes the constitution
in allowing oral evidence to be received to
show the intention of voters in casting their
votes is another part of the statute which we
are now called on to consider. If constitu-
tional in the latter respect that would not sf-
feet the constitutionality of the other separate
and independent provisions.
QuestiOn-Is a return signed by less than
majority of the selectmen Of town or alder
men of city valid within the requirements of
the same section?
Answer-To this question we answer, that
while tow may legally elect as many as two
selectmen, well-known prastice Is to elect
only three, and in such cases return to be
valid must be signed by majority of them,
because, by no possibility can q less number
constitute legal quorum, but the rule is
otherwise with respect to aldermen of cities.
Most of our cities are required by law to have
to have as many as seven aldermen, and none
of them, we believe, has less than five. To
constitute quorum. it is only necessary to
have q majority of the whole number
present, and when such quorum is present
majority of the quorum may do business.
Surprising the number to be seven, four would
constitute legal quorum, and three being a
majority of that quorum could legally act, al
though the fourth should refuse to join them
or should oppose their action. Consequently
if the returns from city having five or seven
is signed by three, then it must be
valid and legal return because only four may
have been present, and in such case three, be-
ing majority of those present, could act legal
" thouoh the fourth shOuld OppOAe their ac-