Prince v. Skillin.

or not at some past time there was a de facto legislature or a de facto governor inasmuch as neither was such de jure and as the rightful legislature was not interfered with in the exercise of its legitimate powers, and the rightful governor is not disturbed in the discharge of his official duties. The acting legislature and the acting governor are both de facto and de jure the legislature and governor of the State and to be recognized as such.

2. It is claimed that the decision of the governor and council acted as a final canvassing board, and that their final action constitutes an estoppel upon all other branches of the government, except the houses of the legislature in regard to the membership of those bodies.

This is not so. The object of all investigations is to arrive at true results. The canvassing board, so far as relates to county commissioners, are limited and restricted to what appears by the returns, except that by Revised Statutes, chapter 78, § 5, and chapter 212 of the acts of 1877, "they may receive testimony on oath to prove that the return from any town does not agree with the record of the votes of such town or the number of votes or the names of the persons voted for and to prove which of them is correct; and the return when found to be erroneous may be corrected by the record," and the governor and council are required to "count and declare for any person all votes intentionally cast for such person, although his name upon the ballot is misspelled or written with only the initial or initials of his christian name or names; and they may hear testimony upon oath in relation to such votes in order to get at the inten tion of the electors and decide accordingly." But they are nowhere authorized to extend their inquiries beyond these limits -- to inquire into the validity of meetings - whether or not votes were cast by aliens or minors or any of various questions involving the validity of the result. Their judgment is not made conclusive. In case of senators and representatives, the final determination rests with the senate and house. So in reference to county officers, the courts in the last resort, must determine the rights of the parties. If it were not so, if the canvassing board erred in their computations, if they should willfully or ignorantly disregard the law-rejecting legal and valid returns and receiving and acting upon illegal and invalid returns, there would be no remedy for the party duly elected. "I say the court, in their opinion (25 Me. 570), "the legislature had deemed it expedient, and had actually intended to constitute the

Prince v. Skillin.

governor and council judges generally of the clection of county officers, it would have been easy for them to have been explicit to that effect; not having done so, it must be presumed that nothing of the kind was intended." It is abundantly obvious this must be so, since the right of full investigation is withheld from them.

County commissioners hold their office by popular election. If one not legally elected is erroneously declared to be elected, the will of the people is disregarded. An usurper holds an office to which he has no right. "The usurpation of an office is not an invasion of executive prerogative," observes NOTT, J., in State v. Deliesseline, 1 McCord, 52, "but of the rights of the people; and the only method by which these rights can be protected, is through the instrumentality of the courts of justice."

In accordance with these views it has been uniformly held by this and all other courts where the question has arisen, that the decision of the canvassing board is only prima facie evidence, that the real title to an office depends upon the votes cast, and that the tribunal before which the question arises will investigate the facts of the election, the votes cast, and the legality of the action of the canvassing board. People v. Cook, 8 N. Y. 67; People v. Vail, 20 Wend. 12; State v. Governor, 1 Dutch. 348; People v. Thatcher, 55 N. Y. 525. The series of opinions of this court from that of 25 Me. 568, to the present time, concur in the conclusion that the action of the governor and council, so far as relates to all matters pertaining to the case under consideration, in canvassing the returns, is purely ministerial, and is to be confined strictly within the bounds of the Constitution and the statutes enacted in furtherance of the Constitution.

The underlying principle is that the election and not the return is the foundation of the right to an elective office, and hence it has been held competent to go behind the ballot box, and purge the returns by proof that votes were received and counted, which were cast by persons not qualified to vote. People v. Pease, 27 N. Y. 45. "Freedom of inquiry in investigating the title to office," observes ANDREWS, J., in People v. Thatcher, 55 N. Y. 531, "tends to secure fairness in the conduct of elections, faithfulness and integrity on the part of returning officers, and it weakens the motive to fraud. or violence by diminishing the chances that they may prove successful in effecting the objects for which they are usually employed." 3. The ground is taken "that the vote of the city of Portland was

Prince v. Skillin.

rightly rejected as illegal by the governor and council, the return thereof not being in accordance with the statute, in that it did not contain the names of all the candidates voted for with the number of votes set against them."

It is conceded that if the vote of Portland is to be counted, the plaintiff was duly elected. The whole number of votes cast was six thousand three hundred and thirteen, of which two were returned as scattering.

None of the votes of the city of Portland were counted. They were all thrown out. Why? Because the ward meetings were not regularly notified? Because the ward meetings were not legally organized? Because those not qualified electors were permitted to vote? Because there was fraud or intimidation at the meeting? Because the votes of qualified voters were rejected? Because the votes were not received, sorted, counted and declared in open ward meeting? Because a fair record of the result was not seasonably made? Because the returns duly sealed and attested were not transmitted to the secretary of State within the time required? Because of any informality, great or small? No. None of these causes were pretended, much less proved, but because of the number of votes cast two were returned as scattering, that is, because two wrote "scattering" on their ballots, or because two voted for candidates not voted for by anybody else, and the clerk returned them as scattering instead of giving the names of persons for whom the votes were cast. Thus, and for such cause, 6,311 voters, being over a third of the voters of the county of Cumberland, were disfranchised for they were equally disfranchised whether they voted for one candidate or the other. This disfranchisement was for no neglect or omission of theirs.

This is a government of the people. Their will as expressed by the ballot is what is to be ascertained and declared. To disfranchise six thousand three hundred and eleven voters because two ballots were returned as scattering, is a novel mode of giving expression to the popular will. If the citizens voting can have their votes nullified for such cause, any voter by writing "scattering" on his ballot or any clerk by returning a vote or votes under this head, may annihilate a majority however large. No man can be sure his vote will be effective.

The word "scattering" written on a ballot indicates the name of an individual or it does not. If a name, then it should be counted.

Prince v. Skillin.

If it is not the name of an individual, then perhaps it may be regarded as a blank vote. It is, at any rate, a ballot. It is provided by Revised Statutes, chapter 4, § 32, as amended by chapter 212 of the acts of 1877, that "in order to determine the result of any election by ballot, the number of persons who voted at such election shall first be ascertained by counting the whole number of ballots given in, which shall be distinctly stated and recorded." The whole number of ballots counted, including the votes returned" scattering," the petitioner was most assuredly elected; for in the case under consideration these votes however added or subtracted, would not have changed the result.

The office of county commissioner is one created by the statute, not by the Constitution. As a canvassing board, the governor and council act in relation to this office under Revised Statutes, chapter 18, § 5, as amended by chapter 212 of the acts of 1877, and by that act the whole number of ballots given should have been counted. Had they been so counted the plaintiff's election was assured.

The rule obtains in every State, that an election is not to be set aside and declared void, merely because certain illegal votes were received, which do not change the result of the election. People v. Tuthill, 31 N. Y. 550; Judkins v. Hill, 50 N. H. 140; School District v. Gibbs, 2 Cush. 39. In Ex parte Murphy, 7 Cow. 153, two ballots were put in the box on the names of two persons who were formerly voters, but who had died some weeks before the election. "To warrant the setting aside the election," the court observes, "it must appear affirmatively, that the successful ticket received a number of improper votes, which, if rejected, would have brought it down to a minority. The mere circumstance that improper votes were received, will not vitiate an election." The extra vote should never be rejected, when it is possible to ascertain the fraudulent vote. Mann v. Cassidy, 1 Brewst. (Penn.) 32. In an action to determine the right to an office, the court may look beyond the returns and even the ballot boxes, if necessary, to ascertain the truth. People v. Cook, 14 Barb. 259.

Now there is no allegation whatever that illegal or fraudulent votes were cast. Whether the votes returned as scattering were cast by persons not authorized to vote, or fraudulently cast, or for a candidate ineligible, or erroneously returned as scattering by mistake or fraud, is immaterial, inasmuch as they did not change the

First National Bank of Salem v. Grant.

result, the petitioner having a plurality of over six hundred votes should have been declared elected.

It is proper to add that the amended return shows the names for whom the votes counted as scattering were given to wit: William B. Skillings. So that in truth, there remains no conceivable ground upon which the respondent can claim to hold over.

The decision of the canvassing board was at war with the law of the land, the rights of parties, the will of the people and the principles upon which alone a republican government can rest. Judgment for the petitioners.

WALTON, BARROWS, DANFORTH, Peters, LibbEY and SYMONDS, JJ., concurred.

FIRST NATIONAL BANK OF SALEM V. GRANT.

(71 Me. 374.)

Negotiable instruments · accommodation note-transfer after maturity.

The maker of an accommodation note, lent without restriction, is liable to a third person who acquires it for value after maturity. (See note, p. 335.)

A

CTION on a promissory note. The opinion states the case.

Wm. H. Folger, for plaintiff.

Joseph Williamson, for defendant.

APPLETON, C. J. This is an action brought under Revised Statute, chapter 66, § 13, upon an appeal by the plaintiff from the decision of commissioners of insolvency upon the estate of the defendant's intestate, William McGilvery, to recover the amount of two notes of hand signed by said McGilvery as maker.

The facts in relation to these notes differ and they will be sepa rately considered.

I. The note for $900, dated January 12, 1876, on four months, payable to the order of Gilmore, Kingsbury & Co., at any bank in Boston, was an accommodation note of McGilvery, and was indorsed by the payees in June, 1876, as collateral security for their note of $2,000 renewed at that time.