In re Justices' Opinion

• Decision Date: 06 December 1867
• Citation: 54 Me. 602
• Parties: In re Opinion of the Justices
• Court: Maine Supreme Court

54 Me. 602

In re Opinion of the Justices

Supreme Judicial Court of Maine.

December 6, 1867

STATE OF MAINE.

EXECUTIVE DEPARTMENT,

)

AUGUSTA, Dec. 6, 1867 )

To the Honorable, the Chief Justice and Associate Justices of the Supreme Court.

I respectfully ask the opinion of the Court upon the following question:--

In counting votes for county officers, are the Governor and Council authorized to reject ballots illegally received by the presiding officers of elections by reason of such ballots having upon them distinguishing marks, when such fact is duly set forth in the record of town meeting in which such ballots were cast.

Very respectfully,

J. L CHAMBERLAIN.

Bangor Dec. 10, 1867.

The undersigned Justices of the Supreme Judicial Court have the honor to submit the following answer to the interrogatory proposed.

In 1845, the opinion of this Court was requested upon the question whether it was competent for the Governor and Council, in counting votes for county officers, under the provisions of the then existing law, to receive from the town clerk and selectmen evidence to show that the return made by them did not correspond with the records.

The Court in their opinion say, that the Governor and Council were no otherwise judges of these elections than " to open and count the votes returned," and that they were not authorized to receive any other evidence in relation to the votes, than what the certificates, prepared in accordance with the law, transmitted and received, may contain. " They are to compare the votes, and, in so doing, to ascertain who if any one, is elected, and if any one is thereupon found to be elected, it will become the duty of the Secretary of State to issue notice to him of his election; and if no one shall be ascertained to be elected, the Governor, with the advice of the Council, must make an appointment to fill the vacancy."

" The powers conferred upon the Governor and Council are specific and precise, and it is believed it would be irregular to go beyond them, or in any manner to deviate from them. If they could receive evidence that the certificates were erroneous in one particular, they might with equal propriety do so in another; and so exercise the powers of judges of those elections generally, and without restriction." 25 Me. 568. The same views were reaffirmed in Bacon v. York County Commissioners, 26 Me. 494.

The Legislature, the opinion of this Court as to the power of the Governor and Council in cases like the present having been ascertained, saw fit to enlarge those powers only to a limited extent. By R. S., 1857, c. 78, § 5, the Governor and...