PUBLIC DOCUMENTS. 



747 



that in fact no summons was issued, and that tlu-ir 

 names were not borne on the roll certified to the House 

 an provided by R. 8. M., chap. 2, see. 26. A motion 

 was seasonably made that these members, appearing 

 by the returns beforehand to have been duly elected^ 

 BOVld l>u jHTinitU'd to jartk-ipate in its organization 

 but the Assistant Clerk refused to put the motion ana 

 to entertain an appeal. By the Constitution the re- 

 turns were before the House. By those returns the 

 representatives above named appeared to be elected. 

 Their seats were not contested. The Governor and 

 Council could not. without a violation of their consti- 

 tutional duty, neglect to issue to them a summons, nor 

 the Secretary of State to place their names on the cer- 

 tified roll which it was his duty to furnish. The Gov- 

 ernor and Council could not legally withhold their 

 summonses from those appearing to be elected. They 

 could not order a summons to issue to some appearing 

 to be elected and withhold it from others. If they 

 could, it would be in their power to select from the 

 members appearing to be elected those who should and 

 those who should not take part in the organization of 

 the House. 



See, 25, chap. 2, Revised Statutes, restricts the vote 

 to those whoso names are borne on the certified roll. 

 The restricting the vote to those only whose names are 

 thus borne is at variance with the Constitution in so 

 far as it restricts and limits the action of the House to 

 those whom the Governor and Council may select, and 

 not to those appearing to be chosen and to those the 

 House may determine to be members. The twelve 

 members had a right to act in the organization of the 

 House. Their election was patent on inspection of the 

 returns. The House in no way denied their right. 

 The question whether their names should be added to 

 the roll was not submitted to its determination. Upon 

 the facts set forth they appeared to be and were elected, 

 and it is not to be presumed that the House, knowing 

 such facts, would nave prohibited this action if the 

 Clerk haa permitted the question to be put. These 

 members had a right to take port in the organization 

 of the House until it should otherwise determine. 



The House can not legally organize or act under a 

 certified roll of one hundred and thirty-nine names 

 only, and giving no representation to the five cities 

 named, provided the representatives from the cities 

 appeared and claimed their seats, and the House took 

 no action whatever upon the question of their right 

 to participate in the organization, the Clerk refusing 

 to entertain a motion made for that purpose, and re- 

 fusing to entertain an appeal from his ruling thereon. 



When persons are legally elected members of the 

 House from the representative districts of Skowhegan 

 and Farmington, and that fact unmistakably appears 

 on the official returns, and by the decision of the 

 Court on the facts recited in the statement submitted, 

 for those districts, those members elect have a right to 

 take part in the organization and all subsequent pro- 

 ceedings of the House without a summons, the per- 

 sons summoned having returned their summonses and 

 declined to serve as representatives on the ground that 

 they were not elected, unless the House has acted upon 

 the question of their right to act as members, and de- 

 termined to the contrary. 



Eleven members duly elected and summoned, and 

 seven other members not summoned, but appearing to 

 be elected by a plurality of all the votes returned, un- 

 der the requirements of the Constitution and the de- 

 cision of the Court, can constitute and organize a legal 

 Senate, provided said eighteen members each received 

 for Senator a plurality of all the votes cast, and the offi- 

 cial records as well as the official returns show that fact ; 

 and sixty-two duly summoned members elect of the 

 House or Representatives, together with twelve mem- 

 bers elect not summoned from the cities of Portland, 

 Lewiaton, Bath, Saco, and Rockland, and two mem- 

 bers elect not summoned from the towns of Farming- 

 ton and Skowhegan, can constitute and organize a 

 legal House of Representatives, when the fourteen 

 members above enumerated were in fact elected, and 

 that fact appears by the official returns and by the de- 



cision of the Court, no other persona holding sum- 

 monses for the same seats. Circumstances may exist 

 which will justify and render legal such an organiza- 

 tion of the Senate and such an organization of the 

 House. We think such organizations would be justi- 

 fied and rendered legal by the existence of such cir- 

 cumstances as are recited in the statement of facts sub- 

 mitted to us, and that such organizations effected un- 

 der such circumstances would constitute a legal Legis- 

 lature, competent to perform all the functions consti- 

 tutional Iv belonging to that department of our govern- 

 ment. Tumult and violence arc not requisites to the 

 due assertion of legal rights. They should be avoided 

 whenever it is possible to do so. They can never be 

 justified except in cases of the extrcmest necessity. 

 Such peaceful modes of organization are far preferable 

 to a resort to violence. Iso rights should be lost by 

 those who seasonably assert them and appeal to the 

 constitutional tribunals instead of resorting to force. 



The seventy-six members elect enumerated can con- 

 stitute and organize a legal House of Representatives, 

 together with nine other members elect who were in 

 fact elected, and appear by the official returns and by 

 the decision of the Court to be elected, though the nine 

 seats aforesaid are claimed by other candidates who 

 were summoned by the Governor and Council, but 

 were not in fact elected, and do not appear to be 

 elected by said official returns under the decision of 

 the Court. 



When a person receives a summons as a member of 

 the House of Representatives, and returns the same to 

 the Governor before the assembling of the Legislature 

 and resigns his seat, it makes a vacancy in the House 

 which is to assemble, which vacancy " may be filled 

 by a new election," under the provisions of Art. XII., 

 part 1, sec. 6 of the Constitution. That the proper 

 steps may be taken by the municipal officers to that 

 end, it is necessary to regard such resignation as irrev- 

 ocable. If, when once made, it could be recalled at 

 will, the municipal officers could never know that the 

 seat was vacant by resignation. One who has thus re- 

 signed can not be compelled to attend as a member, 

 lie is no longer a member. The language of the Court, 

 in regard to using the power of the Houses to compel 

 the attendance of these members, in the constitutional 

 opinion given in 85 Me., 563, applies only to those 

 who, without vacating their seats, absent themselves 

 from the sessions of the body to which they were 

 elected. It would be alike contrary to the spirit of 

 our institutions and detrimental to public policy to 

 hold that a man might be compelled to accept an office 

 of such a character. 



In our recent answer to questions presented by the 

 Governor, we said in substance that one of the objects 

 of the constitutional requirement of a record of the 

 vote to be made at the same time and authenticated in 

 like manner with the return was to guard against the 

 possible result of mistake, accident, or fraud in the 

 official returns 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 ascertained by using certified copies of the official 

 records mentioned in the question. Neither the care- 

 lessness nor the turpitude of the officers charged with 

 the making or the custody of the returns can be suf- 

 fered to defeat the will of the people as expressed in 

 the election, so long as the Legislature can ascertain it 

 from the records thus made. True, the Constitution 

 provides that the Secretary of State sliall, on the first 

 Wednesday of January, lay the lists before the Senate 

 and House of Representatives ; but this portion is di- 

 rectory, and a failure to comply with it can not defeat 

 the right of the Legislature to ascertain and declare the 

 result of the election. When the framers of our Con- 

 stitution and our legislators have taken such pains to 

 perpetuate the evidence of the votes oast, and to guard 

 that evidence against the effect not only of accident, 

 but of human fallibility or perfidy, it is not to be 

 thrown away because the Secretary of State fails or is 

 unable to comply with this direction. The Constitu- 

 tion is to be construed, when practicable, in all its 



