Year: 1879

columns of the New York Sun, instead OF the
leading newspapers of his own State where the
outrage has been committed. 1t may be he
thought the performance better suited for that
locality, which has been the theatre of the
brilliant exploits of Tweed and his fellow con-
spirators, than for the sober and steady going
State of Maine, where the people have certain
fixed notions touching public morals and the
discharge of high official trusts.


1t is to be observed, that in making this
statement, Gov Garcelon has in his possession
all the information which bears upon it; and
that to his Council only, and to such political
friends as they have called to their assistance
are known the star chamber proceedings
which have been carried on in secret, and
which have resulted in producing this extra
ordinary result. In vain have the people OF
this State endeavored to inform themselves Of
the errors which existed in the returns,-re-
turns which both from their nature and by
the plain spirit and intent of the law are
intended to be open at all proper times to
public inspection. In only few instances
was it permitted that parties interested should
inspect them-and this only when such time
had elapsed as to render such inspection
useless to prevent the completion Of an outrage
which had already been determined upon.


If the Governor and Council intended fairly
and honorably to discharge their duties with
out fear or favor to any party, it is little dif-
tcult to see why they should have conducted
themselves precisely as if they were planning
and executing a crime against the people OF
the State In all the provisions of the Constr
tuition quoted by the Governor in his defense
no one can be found which authorizes the Sc
cret discharge of duties which should be pub
lie in their performance, or forbids the exh1Di-
ton at proper times to interested parties OF re-
turns which indicate the will Of the people,
and which interest every man who has thrown
ballot at the elections.


1t is true that the constitution prescribes
certain methods by which the will OF the peo-
pie shall be ascertained at the polls; but the
Governor and Council seem to have ignored
entirely the fact that, while some of these pro-
visions are mandatory and vital, others are
merely directory, and that compliance with
their provisions is not material-proylded the
true will and intent of the people can be ar
rived at by an examination Of the features
made for their preliminary inspection. And
they seem further to have ignored the fact that
it is the spirit and intent of the whole instru-
ment taken together which is to govern, and
not mere isolated sentences, and that it was
never intended by the trainers OF that instru-
ment, or of the statutes enacted by force OF its
provisions, that it should be so construed as to
defeat instead of carrying out the will OF the
people by whom it was ordained. The first
and highest object to be attained under that
instrument was the perpetuation of a repre-
sentative government, where the people should
select their servants, who should enact, con-
strue and execute the laws; and any appeal to
mere forms and technicalities which defeat this
Fundamental purpose of the government is un-
warranted alike by the spirit and the letter of
the constitution.


1t must be apparent to every one that 1t IS
would be impossible in government like ours,
that absolute technical accuracy should be
found in all the proceedings of public officers,
or that the returns of their proceedings should
be so perfect that sharp technical lawyer
could not point out real or fancied inaccuracies
to the willing eyes of a Governor and Council
desirous to find excuses for the purpose OF car
rying out partisan designs and Of reaching a
result different from what the people intended.
And the practice has therefore been, both in
courts of justice and in the doings of past
executives as general rule, that where the
real Intention and will of the people could De
discovered from the returns they should be car
ried into effect, although the return or other
document evidencing such has not all the
technical accuracy of an Indictment. With
this view, the Legislatures of the State have
from time to time enacted laws, enabling the
Governor and Council to receive testimony foI
the correction of errors, and to enable them to
determine the real intention of the people. vi
this character are some of the provisions Of ch'
4 Of the Revised Statutes, of ch. 81 Of the Pub
lie Laws Of 1876, Of ch. 2l2 and 2l3 OF the
| Public Laws of 1877, by which not only eVi-
| dence may be heard and corrections made, but
| il is provided that sin all cases where return
| is defective by reason of an informality, duly
attested copy Of the record may be substituted
| therefor. And in discussing questions OF TINS
nature, Whitman, G. j., in Soper V. Liver
more, 2s Me-, 203, says;


''In the proceedings of our numerous ana
| "varied municipal corporations we ought not


"to look for a scrupulous observance OF the


"most approved formalities. If their proceed
'sings are in substance what they should be,
"and intelligible, it would be mischievous to
"set them aside for the want of technical for


"mality. The intention of the voters of the
''district is perfectly apparent in the case be-
| "fore u.s.


The same doctrine is substantially enunciat-
ed by the Supreme Court of Massachusetts,


and may be safely said to be the rule OF action
adopted IN all cases where it is the purpose to


carry>into effect honestly and fairly the will OF


the people, and not, as in this case, to find ?
| pretext to disregard it.


Aside from the statutes the action of the
| Governor and Council so far as the Senators


and Representative are concerned, is purely


ministerial Upon the House and Senate
| finally devolves the duty of determining who
| are the constituent members of those bodies
| and the complaint is that disregarding this
| fact, the canvassing board have attempted to


usurp the powers of the Supreme Court, tc
| annul and disregard the will OF the Legisla-


ture as expressed in the statutes, and, seizlne
| uDon unimportant and technical defects fol-
purely partisan purposes, to wrest from then
opponents by fraud and artifice result which
| they were unable to obtain in q fair contest


before the people. 1t is clear case OF execu-
tive usurpation


| Tt is useless for Governor Garcelon to at


tempt to make the people believe that any


requirement. of the constitution or of the laws
compelled or authorized the executive depart


ment to disfranchise the city of Portland be-
| cause the return upon its face showed that IA:
! scattering votes were cast. when at the same
time it declared the fact that if this number ol
votes were added to the votes of the Democrat
| ic candidate having the highest number, the
| Representative elected would still have ceal
! majority of hundreds; or that any provision ol
| the constitution authorized the refusal oil a
! certificate to the member-elect from Skowhe-
| gan. because the ballot was not of such shape
| that it could be readily counterfeited by his
Democratic opponent; or that by any provis


ion of law he and his Council were constituted


legal tribunal to determine that an acting


selectman who had served the town in thai


capacity for years, was an alien. as in the case