The Portland daily press., 1890-09-01

/
eleventh and eighteenth days of August in
any such year, giving previous notice of the
time and place of each session as their town
meetings are notified" and further that ION
or before the twentieth day of August in any
such year the selectmen shall deposit in the
Office of the town clerk an alphabetical list
Of voters thus prepared and revised, and
post similar list In one or more public
places in the town." 1t is alleged that the
Saco aldermen complied with neither Of the
provisions, and therefore the Biddeford
Democrats argue that there can be no legal
election in Saco. Saco is a Republican
town and two years ago gave 334 Republican
majority. The disfranchisment of the town
would infiict loss of this number of votes
| on the Republicans, and that is why the
Democrats are SO happy.
Their Joy, however, we are inclined to
| think, will be short lived. The statutes re-
ferred to are doubtless directory and failure
| to comply with them cannot disfranchise the
legal voters OF town. If it could the board
OF aldermen Of any city or the selectmen of
any town in the state Of Maine could disfran.
chise their town whenever they saw fit. ALI
they would have to do would be to neglect to
NOpOos al dlpudUctlCdl Va LILO fObCAo Va
the town with the clerk on or before the
| twentieth day of August. There would be
| absolutely no remedy. The courts could not
| be appealed to before the twenty-irst day of
| August to compel them to perform their
duty, for not until then would the neglect
have been committed, and then it
/ would be too late for a compli-
ance with the statute. To be sure they
| might be punished for their neglect; but
Furnishing them would not legalize the cleo
| ton If the defect were fatal. The same
| would be the case In regard to the meetings
/ for correcting the lists. There would be no
time to compel them to perform their duty in
that regard, for their failure could not be
said to have taken place until the time in
which the duty could be performed had
| expired.
The legislature never intended to put it in
the power of the selectmen or aldermen by
such neglect Oh their part. whether wilful or
| accidental, to disfranchise the voters of a
town. The legislature never intended to
make strict compliance with these statutes
indispensable conditions of legal election
This Is clearly shown by section 62 of the
same chapter, which contains the sections
above quoted, in which 1t is provided that
| II such seectmen OF town or assessors of a
plantation Ion w,lduy neglect 70 deposit list OF
post such lists as are hereinbeore required, they
each forfeit not less than fifty nor more than one
hundred dollars; and for each days neglect after
| the twentieth day of August, and until the State
election next ensuing, they each forfeit thirty dol
| lars.
The statute clearly recognizes the power
| of the selectmen to remedy their neglect after
the twentieth Of August, which could not be
done If literal compliance with the statute
were made an indispensable condition of
| legal election.
/ Questions analogous to the one under
discussion have frequently arisen in the
courts and statutes like those relied
upon in this case have commonly been re-
garded as mere regulations, Noncompliance
with which do not invaldate an election. The
statutes of this state. and possibly of every
state In the Union, provide that the select
men shall give notice of the time of holding
an election. But it has been generally held
by the courts that failure to give such notice
will not invalidate an election, provided the
time Of holding 1t is fixed by law. The con-
sequences of the failure of selectmen to per-
form duties imposed upon them by the law
L al OohhOSsAOh WIN NiOebtOhc WOAO OioCuSoCu
by the Supreme Court of Massachusetts as
long ago as 1888, and the doctrine then laid
down has stood ever SINCE In that case
Judge Morton delivering the opinion Of the
court said:
| What shall be the consequence of an omission
by the selectmen or town clerk to perform any of
tneir prescribed duties, and upon whom shall it
day the oeers w Would ne SDecaoteof Of
| be liable to punishment. But shall the
| whole town be DISTINGUISHED. by reason of the
would be furnishing the innocent for the faults Of
the guilty IL would be more just and more con-
soDant with che spirit OF our institutions; to in
hict severe penalties upon the misconduct inten-
tional or accidental of the officers, but to receive
the votes whenever they can be ascertaned with
reasonable certainty.
The doctrine here laid down received the
unqualified sanction of the Supreme
Court Of Maine a few years ago
But we are not confined to inference from
the general doctrine, clear as they may be, in
this case. In 1922 the Supreme Court of
Maine decided case which is in many re-.
spects close parallel to the one under dis
cussion. The statutes provided that assessors
Of towns should make out correct alphabet
ical list of all the inhabitants of the town
| qualified to vote for town officers on or
Il SoANAO shO avn VA anu budt
no person should vote unless his name
was on the list. In the town of Standish no
such list was prepared, and it was therefore
contended that the election was void. But
the court overruled the point, saying the
statute In question was merely directory to
| the assessors who by their neglect of an as
signed duty have incurred the statute pen
atty. and this is the only consequence"
| The omission in this case was much
more serious than In the Saco case.
That omission was entirely irremediable
while the omission In the Saco case can be
remedied before election land as correct a list
OF voters be prepared as would have been the
case had the statutes been strictly complied
with. No doubt the Saco alderman if they
have been guilty Of the negligence alleged
have incurred the statute penalty, but their
negligence has not disqualified the consttu-
tionally qualified voters of Saco from depos-
iting their ballots at the election on the 9th
OF September and having them counted.
But let us assume for moment that strict
compliance with the statutes by the alder
men Is an essential condition of valid cleo
ton and see what effect such doctrine will
have on the voters of Biddeford. The stat
utes make 1t the duty of the aldermen to
prepare before the eleventh of August cor
rected list Of persons constitutionally quail
fed to vote. Now it is notorious that the
Biddeford aldermen did not prepare
such list. The list they prepared was
list Of persons many of whom they well
knew were not qualified to vote. The Saco
aldermen failed to comply with the statute
In one particular, and they failed in another.
If, therefore. the voters of Saco are to be
disfranchised by the neglect of their alder
men. the voters Of Biddeford must suffer the
same penalty for the neglect of theirs.