Volume 1 — Reports of Contested Elections

A petition was received at the October session,1 from sundry inhabitants of the town of Amherst, praying that a precept might be issued to them, for the choice of a representative, in place of Nathaniel Dickinson, Jr., returned a- member from that town, whose election they alleged to be illegal.

<p>Conduct and character of member inquired into.</p>

<p>A petition was received, at the May session,1 from sundry inhabitants of the town of Cambridge, setting forth that Samuel Thatcher, the member returned from that town, was illegally chosen, and praying that his seat might be vacated, and a precept issued to them for a new choice. The petition was referred to a committee,2 upon whose report, the petitioners were ordered to notify the selectmen and town clerk of Cambridge, to appear on the fourth day of June in the same session, to show cause, why the seat of Mr. Thatcher should not be vacated.1</p>

<p>Character and conduct of member inquired into.</p>

<p>Where a petition was presented against a member, praying that he might be excluded from the house, on the ground of Ms being “ inimical to the government,” and evidence was given in support of the charge, it was ordered that such member withdraw from the house, and that the case be heard, upon evidence to be produced by the parties, at the next session.</p> <p>The statements of a member, made in his place by direction of the house, received as evidence.</p>

<p>Qualification of a member as to property.</p>

<p>Tlie validity of an election may be inquired into on motion.</p>

<p>The certificate of a constable, of the warning of a meeting for the choice of a representative, was held to be conclusive evidence of such warning.</p>

<p>An election, effected by illegal votes, is not confirmed by a subsequent refusal of the meeting to reconsider the choice.</p>

<p>A member, disqualified “ from holding any post of honor or profit,” by a resolve of a former general court, is thereby rendered ineligible.</p>

<p>The seditions conduct of a member is not sufficient ground for his expulsion.</p>

<p>Á member, who had been excluded from the house at the first session, as a person incapable of being a representative, being elected and returned as a member at the second session, it was held, that, by such exclusion, he was rendered incapable of holding a seat in the house for the same general court.</p>

<p>Character and conduct of member. — Neglect of member to appear in Ills place, when ordered by the house, considered as a contempt.</p>

<p>The refusal of the selectmen of a town, to admit the voters of a plantation, 'which had been annexed to it by statute, to act in town affairs, at the annual town-meeting. And to call another meeting for the purpose, was held sufficient to authorize the calling of a town-meeting by a justice of the peace, and the election of other selectmen and town-officers.</p>

<p>Where it appeared, that a member was under indictment (l for seditiously and riotously opposing the collection of public taxes,” it was ordered, that his right to a seat be suspended, until he should have his trial on the indictment.</p>

<p>It being alleged against a member returned to the general court for the year 1784 — 5, that he had been reported to be an enemy to the country, during the late war ; that he had refused to aid in carrying it on ; and that he had said he hoped Great Britain would conquer this country; it was held, that if these facts were proved, they would not render the member ineligible, or justify the house in excluding him from a seat.</p>

<p>Notice of town meeting.</p>

<p>Where, in a petition against an election, the member returned was charged. with having obtained his election “ by bribery, and by corrupting the minds of as many as he could by spirituous liquors,” and by other improper and illegal methods, and evidence was offered in support of the charge, it was held, that the house had no constitutional right to suspend the member from acting as such, until the matter of the charge had been heard and determined.</p>

<p>Where it appeared that a member of the house in 1785 — 6 had been indicted in Í7S3, for the part he had taken in the then late war with Great Britain, in favor of the latter, and had been discharged from such indictment, as justly entitled to the benefit of the sixth article of the treaty of peace ; it was held that the member’s right to a seat was not thereby invalidated.</p> <p>The eligibility of a member, as affected by his character and conduct, may he inquired into on motion, and the statement of evidence, by a member,</p>

<p>The qualification of a member, as to residence, may be inquired into on motion.</p>

<p>Where a meeting, which was held for the choice of a representative, and at which an election was effected, was adjourned to another day; and at the adjournment, it was voted to reconsider the votes passed at the previous meeting u respecting the choice of a representative; ” it was held, that the election was not thereby invalidated, although the first meeting was very thinly attended, and at the adjournment, a much larger number of the inhabitants was present.</p>

<p>The validity of an election being called in question, on the ground, that the member returned did not possess the requisite qualifications as to property, it was held, that the burden of proof was on the petitioners.</p>

<p>The removal of a member, from the town for which he is elected, to another town within the state, does not disqualify him from holding his seat for the residue of the term.</p>

<p>A member convicted of sedition, and sentenced to an ignominious punishment, expelled.</p>

<p>Where a member was charged with being under an indictment for seditious practices, and with being under bond, &c., the house refused to suspend him from acting as a member, until the indictment should have been determined.</p>

<p>How determined by the number of ratable polls in the several towns.</p>

<p>The house, having received a petition against an election, and assigned a time for the hearing thereof, allowed the same to be withdrawn at the request of the petitioners.</p>

<p>Where two persons were returned by separate returns, from a town entitled to send one member only, each claiming the seat in opposition to the other, both were suspended from acting as members, until the election should be determined.</p> <p>At a meeting for the election of representatives, the votes were brought in with some confusion and disturbance; the right of several persons to vote being questioned, after they had voted, one of them qualified himself by taking the oath, others refused to qualify themselves or to withdraw their votes, and one offered to withdraw his vote, but refused to state for whom he voted ; and it was thereupon voted, that the whole matter should subside upon the last mentioned voter’s withdrawing his vote, which was done accordingly: it was held, that these irregularities were not sufficient to invalidate the election.</p> <p>A piece of paper, having the same name written upon it twice, constituting two ballots not separated, is, it seems, to be considered and counted as one ballot.</p> <p>When an election has been legally made, it cannot be superseded or invalidated by another election made at a subsequent meeting.</p>

<p>Persons holding offices under the government of the United States, similar to those, which, by the constitution of this state, are declared to be incompatible with holding a soat in the legislature thereof, are not eligible as members.</p>

<p>A minister of the gospel, though exempted as such from taxation, is not ineligible as a representative.</p>

<p>The office of district attorney of the United States, for the district of Massachusetts, is incompatible with that of representative in the legislature of this commonwealth.</p>

<p>The office of judge of the district court of the United States, is incompatible with that of representative in the legislature of this commonwealth.</p>

<p>Notice of town-meeting. — Proceedings in same. — Question as to their regularity.</p>

<p>Where a meeting for the choice of a representative was held under a warrant containing only one article, namely, (i to chose a representative,” it was held, that the town had no authority to vote not to send a representative, and that an election after such a vote was valid. [Bat see the opinions of the justices of the supreme judicial court, 1810 — 11, and 1815 — -16.]</p>

<p>Upon a question, whether a member, who held the office of deputy marshal of the district of Massachusetts, under the government of the United States, was not thereby disqualified to hold his seat, the house ordered the subject to subside.</p>

<p>Members elect of congress are not thereby disqualified to hold seats as members of the legislature in this commonwealth.</p>

<p>Eligibility of a member, who had been impeached for corrupt and wilful misconduct as a magistrate, and found guilty.</p>

<p>Selectmen, after an adjournment of a town-meeting, may change the place for holding the adjourned meeting.</p> <p>Two members claiming the same seat having been returned by separate returns, each of which purported to be made by a distinct set of selectmen, both were restrained from voting until their respective claims should be determined.</p>

<p>A judge of probate, having been elected a representative, and resigned his office of judge, after the commencement of the session, was held to be entitled thereby to take his seat as a member.</p>

<p>A member, who had been convicted of forgery, and sentenced to pay a fine therefor, ten years previous to his election, but had not been pardoned, or procured a reversal of the judgment, was excluded from his seat.</p>

<p>An election haring taken place at a meeting, previous to which the selectmen held no session for examining the qualifications of voters, as required by st. 1800, e. 74, § 1, and at which they exhibited no list of rotes; the election was held valid.</p>

<p>The selectmen of a town having issued a warrant for a meeting for the transaction of certain town business, and also for the choice of a representative, and the same having been served according to its direction; one of the selectmen, afterwards, and before the meeting, with the assent of another, inserted a new article in the warrant, previous to the article for the choice of representative, “ to see if the town would send a representativea meeting was held accordingly, at which it was voted not to send, and the town refused to reconsider that vote; the selectmen then called upon the inhabitants to bring in their votes for representative ; several brought in their votes accordingly ; some refused to do so; others withdrew from the meeting; and on the third balloting an election was effected. It was held, that the election was valid. [But see the opinions of the justices of the supreme judicial court in 1810 — 11, and 1815 — 16.]</p>

<p>Where an election was effected at a meeting, which was Irregularly notified, and held at an inconvenient hour, and at which no list of voters was produced; it was held, that such election was nevertheless valid.</p>

<p>Election controverted by the selectmen, by whom the return was signed, on the ground, that they had since discovered that illegal voters, sufficient in number to render the election void, had voted therein.</p>

<p>The office of commissioner of bankrupts, under the first bankrupt law of the United States (act of 1800, c, 19}, was held not to be incompatible with that of representative.</p>

<p>On a petition against an election, alleging irregular proceedings at the meeting at which it took place, the case was postponed, and a commissioner appointed to take depositions in the mean time, at the request of either of the parties.</p>

<p>The number of representatives which a town might constitutionally send, before the adoption of the twelfth and thirteenth articles of amendment, was to be determined by the number of ratable polls therein (being free male inhabitants, of sixteen years of age and upwards, not exempted by law from taxation) at the time of any election.</p>

<p>The petitioners against an election having alleged that the same was void, on the ground, that the member returned did not receive a majority of the votes, and that the selectmen retired by themselves to sort and count the same; and it appearing in evidence, (which was not alleged in the petition.) that there was no list of voters produced at the meeting, and that the selectmen, after receiving the votes, retired into the pulpit of the meeting-house in which the election was held, and, with the town clerk, there sorted and counted the votes ; hut it did not appear, that the votes were given in, as set forth in the petition ; it was held, that the election was good.</p>

<p>Meetings for the transaction of town business, and for the choice of a representative, being notified and held on the same day ; the moderator of the town-meeting and the selectmen presided alternately, as questions were brought forward, relating to town business, or to the choice of a representative :• — It was held, that the election was not invalidated.</p>

<p>Where it appeared, that the member elected had furnished numbers of the electors, both before and after the election, with refreshments of victuals and drink, at his own expense, the election was not thereby invalidated.</p> <p>The office of deputy postmaster is not incompatible with that of representative.</p>

<p>Where two members were returned, claiming a right to the same seat, both were enjoined not to vote or debate until the validity of their elections should be determined.</p> <p>Where a town had been accustomed to elect town officers in April, and a number of the inhabitants petitioned the selectmen to call the annual town-meeting in March, and the selectmen called a meeting for the purpose of considering the expediency of changing the time of choosing town officers from April to March, which meeting, by reason of the confusion and disturbance therein, was not organized ; — this was not such an unreasonable refusal to call a meeting, as would authorize a justice of the peace to call and organize a meeting for the choice of town officers ; — and the election of a representative, at a meeting called by selectmen so chosen, was held void.</p>

<p>A town having a right to send two representatives, at a meeting called to elect a person to represent the inhabitants in the general court, elected a member, and then voted to choose another, and thereupon elected a second; the election of the latter was held good.</p>

<p>Where It was alleged against an election, that neither the warrant for calling the meeting, nor the notification thereof by the constable, contained any statement of the hour of the day on which it was to be held; and it appeared that one of the selectmen, after service of the warrant, altered the same by inserting the hour of the day therein, and directed the constable to make out a new notification, or alter the old one, which was done accordingly two days before the meeting; it was held, that the allegation against the election was not supported.</p>

<p>Member convicted bf forgery suspended from acting.</p>

<p>The qualification of a member, as to property, being called in question, was allowed to be proved by the certificates of the selectmen and assessors of the town.</p>

<p>The validity of an election being questioned, on the ground, that the town did not contain a sufficient number of ratable polls to entitle it to two members, a certificate of the assessors, corroborated by the selectmen, as to the number of ratable polls therein on the first of May preceding the election, was admitted as evidence of the requisite number.</p>

<p>Where an election was questioned, on the ground of a deficiency of ratable polls, it was held, that the certificate of the assessors, or the tax bills of the year next preceding the election, were admissible as prima facie evidence of the number.</p>

<p>The election of four members, returned from the town of W. S., being questioned, on the ground of a deficiency of ratable polls; and it appearing to be doubtful, after long investigation, whether the town was entitled to return that number; that there had been much difference of opinion, as to the construction of the term “ ratable” in the constitution; and that great diversity of practice had resulted therefrom throughout the commonwealth ; the members returned were allowed to retain their seats.</p>

<p>Of the qualification of voters as to residence.</p> <p>Where a member returned was elected by a majority of one vote, and it appeared that several persons, legally qualified, who were present and desired to vote at the election, were prohibited by the selectmen from doing so, the election was held void, although it did not appear, that any more than one of the rejected voters would have voted against the sitting member, if they had been permitted to vote.</p>

<p>Where the votes are given in, or are sorted, dealt with, and counted, in such a manner that the whole number of voters cannot be ascertained, the election is void.</p>

<p>It is no objection to the validity of an election, that a moderator was chosen and presided therein, instead of the selectmen.</p>

<p>Where two members were chosen in a town, which, from a certificate of the assessors thereof, as to the number of persons actually taxed therein, did not appeal- to contain ratable polls enough to entitle it to two members, and one member only was returned he was allowed to retain his seat.</p>

<p>Mode of ascertaining the number of ratable polls in a town, when an election is controverted on the ground of an insufficiency thereof.</p> <p>Where an election was controverted, on the ground of a deficiency of ratable polls, the sitting members were required to lay before the committee on elections, and to furnish the petitioners with, a list of persons whom they alleged to be ratable polls; and the petitioners, within a reasonable time, afterwards, to furnish the members with a list of such persons thereon, as they alleged not to be ratable polls.</p>

<p>Art election being controverted on the ground of an insufficiency of ratable polls, and the selectmen having neglected to furnish the petitioners with a list of the polls, agreeably to an order of the committee on elections, the election was invalidated, on presumptive evidence of the insufficiency.</p> <p>Where members are elected, at separate bailo tings,2 the elections of those only, who exceed the number to which the town is entitled, are affected by an insufficiency of ratable polls.</p>

<p>Where it had been the immemorial custom, for the inhabitants of a town, and the inhabitants of an adjoining unincorporated territory, to unite in the choice of representatives, and they had also been unitedly taxed for the expenses of representation ; — it was held, that the latter were properly enumerated among the ratable polls of the town, to entitle it to two members.</p>

<p>Assessor’s certificate- — presumptive evidence of the requisite number of ratable polls.</p>

<p>Of the qualification of voters as to residence.</p>

<p>where a petition against an election was not committed, until so late a period of the session, that an inyestigatisn could not conveniently be had, no order was taken thereon.</p>

<p>Where the election of two members was objected to, on the ground of an insufficiency of ratable polls, and one only was returned, it was held, that the objection did not affect the right of such member.</p>

<p>Assessors’ certificate ; — evidence of the number of ratable polls.</p>

<p>A delay of more than two hours, after the time appointed, to open a meeting for the choice of a representative, was held to be no objection to the validity of the election.</p>

<p>The provision in the constitution, that every town then incorporated might elect one representative, whether it contained the requisite number of ratable polls or not, extends to towns, which, by their acts of incorporation, were not allowed to send a representative, but, for that purpose, were united to other towns.</p>

<p>Question as to the mode of conducting the meeting and receiving votes, where towns act together in the choice of representatives.</p>

<p>Of the qualification of voters, as to residence.</p>

<p>Question, whether aliens are ratable polls upon which to predicate a representation.</p>

<p>Where several individuals, with a view to induce a town to elect six representatives, being the whole number to which it was entitled, of a particular party, gave a bond, for the use of the inhabitants, conditioned, that the whole expense of such a representation should not exceed the pay of two members; — an election, made under such circumstances, was held void, although the members elected had no agency in procuring such bond to be given.</p> <p>Members have no right to vote on the question of the validity of their election.</p>

<p>Where an election was controverted on the ground of a deficiency of ratable polls, and the member neglected to furnish the petitioners with a list of those persons whom he considered as ratable polls, agreeable to the requisition of the committee on elections ; the election was adjudged void, on prima facie evidence of the insufficiency.</p> <p>Where three members were elected at separate ballotings in a town, which contained more than a sufficient number of ratable polls to entitle it to two, but not enough to entitle it to three, it was held, that the deficiency affected only the right of the member last chosen.</p> <p>Committees of the house should return all papers with their reports.</p>

<p>The polls of aliens may, within the intent of the constitution, be ratable polls, when made liable by the legislature to be rated to public taxes.</p> <p>The polls of male aliens, above sixteen years of age, are now (1811) ratable polls, within the meaning of the constitution.</p> <p>Ratable polls of aliens may constitutionally be included in estimating the number of ratable polls, to determine the number of representatives any town may be entitled to elect.</p> <p>The right of sending a representative is a corporate right, and if a town vote not to send, an election cannot be made by a minority dissenting from that vote.</p> <p>The legislature may, by law, establish what shall or shall not be ratable polls, upon which to predicate representation; the designation thereof being left, by the constitution, to the discretion of future legislatures.</p>

<p>Where a town and district, or two towns, are united, by an act of the legislature, for the purpose of electing representatives, the certificate of a member must be signed by a majority of the selectmen of both, or it will be void : — If, in such case, it be proved, that the selectmen of one improperly refused to sign the certificate, the house has power, by the general provision of the stai. 1795, c. 55, § 1, to give validity to any certificate, which shall be “ to their acceptance.”</p>

<p>Notice of town-meeting. — Illegal and improper conduct of presiding selectman, in restraint of the freedom of elections. — Election yoid.</p>

<p>A petition against an election was rejected, because not served on the members returned, according to the rule of the house.</p>

<p>Of fraudulent contrivances to make voters.</p>

<p>A warrant was duly issued and served for a meeting for the choice of three representatives, — Afterwards a second warrant was issued for a meeting, on the samo day, for the choice of a fourth, of which less notice was given than was usual in the town, — Four representatives were chosen at successive ballotings. — It was held, that there was no legal notice of the second warrant, and that the election of the person last chosen was void.</p> <p>Where a town has passed no vote particularly specifying the manner in which meetings shall be notified, the notice of a meeting is to be given according to usage.</p>

<p>State paupers are not ratable polls.</p> <p>Students at an academy, in a town, where their parents or guardians do not belong', are not ratable polls in such town, if under twenty-one years of age; it seems.</p>

<p>If selectmen, at an election for representative, receive illegal votes for the person elected, which are counted, or reject legal votes for other persons, which are not counted, in estimating the whole number of votes given, and the votes so received or rejected are sufficient in number to change or affect the majority, the election will be void.1</p>

<p>Where two representatives were elected at one balloting by a town which had a right to send but one? it was held, that the election of both was void.</p> <p>The rules and orders of one house of representatives are not binding upon another. Precepts for a new choice will not be issued in cases of illegal election.</p>

<p>The election of a member, at one meeting, cannot be superseded, by an election of another, at a second meeting.</p> <p>An election having been duly effected in a town entitled to only one member, the selectmen, at the request of certain of the inhabitants, called a subsequent meeting for the choice of a representative, of which less notice was given than the bye-laws of the town required; at such meeting, votes for a representative were thrown upon the selectmen’s table, in an irregular and disorderly manner, and without being called for, and were sorted and counted by the selectmen, who refused to state for what purpose they were given, or to declare the result; it was held, that the person, who received a majority of the votes so brought in, was not duly elected.</p>

<p>Town paupers are not ratable polls.</p>

<p>A town, entitled to send three representatives, voted to send four, and proceeded to elect four at separate ballotings: The election of the last chosen was adjudged void, and a question raised as to the validity of the election of the first three chosen.</p>

<p>At a meeting for the choice of one or more representatives, the selectmen stated that the town was entitled to four, and called on the voters to bring in votes for from one to four. A motion was made and seconded to send two and no more, and this the selectmen, as they had previously determined to do, refused to put or to permit debate upon. Great excitement followed this decision, in the midst of which a motion to adjourn was made and seconded, hut the selectmen refused to put it, one of them giving asa reason for such refusal, that there were votes in the ballot boxes. Many voters left the meeting, and others refused to vote. Four persons were declared elected. It was held that the election was not free, and, therefore, void.</p> <p>'Where warrants, calling a meeting for the choice of representatives, were dated on the 5th of May, were delivered to constables for service, between the oth and 9th, and were returned on the 10th, having been served by printed notifications left at the houses of the inhabitants on the 10th ; and it did not appear, that the town had ever passed any vote establishing the manner in which meetings should be called, or that there was any uniform usage therein, as to the same; it was held, that the notice of the meeting in question was reasonable and sufficient.</p> <p>The question, what number of representatives a town will send, cannot be determined by requiring the voters to bring in their votes for such number of representatives, not exceeding the number to which the town is entitled, as they shall respectively think proper.</p>

<p>Where selectmen, at the time of issuing their warrant for a meeting for the choice of representatives, had not taken the oath required by St. 1805 c. 26, § 4, “ respecting all elections and the returns thereof,” but took the same on the day of election, before proceeding to open the meeting; this was held to be a sufficient compliance with the statute.</p>

<p>An election can only be effected by the votes of a majority of the electors, to be ascertained by counting the whole number of ballots given in; and where several persons are to be elected at the same time by general ticket, each piece of paper given in is to be counted as a ballot, whether it have on it the requisite number of names or not.</p>

<p>Transient persons who came into a town a few days before the first day of May, let themselves there as laborers for a few months, and then returned to their homes elsewhere, were held to be ratable polls in such town.</p>

<p>Question — whether persons, in the naval or military service of the United States, are ratable polls.</p>

<p>Question, — as to the right of a member, who has removed into another state, to retain his seat.</p>

<p>If, in consequence of electors voting twice, either intentionally or by mistake, it becomes uncertain whether the person declared to be elected received the votes of a majority of the voters then voting, the election is void.</p>

<p>Of residence, within the meaning of the constitution.</p>

<p>At a meeting for the choice of a representative, the selectmen refused to put or hear debate upon a motion, regularly made and seconded, that no representative should be sent, and ordered the voters to bring in their votes. The voters insisting upon their right to debate the motion, the chairman of the selectmen ordered the sheriff to read the riot act, which was done, and thereupon about half of those present left the meeting. During these proceedings and afterwards votes were received, being handed from one to another till they reached the ballot box. An election so made was held void.</p>

<p>When a member’s qualification as to property is questioned, the burden of the proof is on the petitioners.</p>

<p>The inhabitants of a district, whose act of incorporation authorized them to join with a neighboring town in the choice of representatives, but did not require the selectmen of the latter, in any way, to give notice to the inhabitants of the district of the time and place of meeting for that purpose, were held not to be entitled to vote in such choice, unless they were legally warned to attend the meetings therefor ; although they had been accustomed, for many years after the act, to attend the meetings of the town for the choice of representatives, without any warrant being previously issued by the selectmen of the district for the same; and although it had been the practice of the selectmen of the town, for some years, to give seasonable notice of such meetings to the selectmen of the district, who thereupon issued their warrants accordingly to the inhabitants of the same : It was held, also, that if no legal notice of a meeting of the town for the choice of representatives was given to the inhabitants of the district in consequence of a neglect of the selectmen of the town to give information thereof to the selectmen of the district, the town might nevertheless refuse to receive the votes of the electors of the district, (although after receiving them at one balloting) and might alone choose a representative.</p> <p>Where the return of a representative, elected by the votes of a town and a district annexed to it for the purpose of electing representatives, was signed by the selectmen of the town only, the house directed the member to procure a certificate of the selectmen of the district.</p>

<p>A town having voted to send six representatives, to be voted for on one ticket, some of the electors brought in their ballots for the whole number; some for a less number ; some six separate ballots with one name on each ; and one voter, after having carried in a ballot with one name on it, carried in a second with, five names on it, After the votes were thus received, they were cut and severed before they were counted. It was held, that the manner, in which the votes were received, dealt with and counted, rendered it impossible to determine the number of persons, who voted in the election, and that the election was therefore void.</p>

<p>The office of chaplain in the army of the United States is incompatible with that of representative.</p>

<p>The right to send a representative is a corporate right, which towns may exercise or waive, at their pleasure ; and, therefore, if selectmen refuse to put a motion, regularly made and seconded, in town-meeting, “ that the town send no representative,” or “to see if the town will choose a representative ’ but call for and receive votes for a representative, an election so made is void.</p>

<p>The right of a town, to elect a representative, is a corporate right, secured by the constitution, to be exercised only in a corporate capacity ; and if a town votes not to elect, or not to elect the whole number to which, it is entitled, a minority of the electors, dissenting from such vote, cannot legally proceed to an election.</p>

<p>An election, made after a yote not to send, does not become valid, by a reconsideration of that vote after such election.</p>

<p>The declaration of a voter, whose right to vote was in question, made after the election, and when he was not under oath, that he voted for a particular individual, was held not to be sufficient evidence for whom he voted, on an inquiry into the validity of the election.</p>

<p>Where a member had been convicted upon an indictment for larceny, and the verdict had been set aside, a new trial granted, and the indictment afterwards quashed for informalitythe conviction was held not to disqualify him.</p>

<p>The selectmen having inadvertantly omitted to count a considerable portion of the votes given in at an election, in consequence of which it became impossible to ascertain whether or not the members returned received a majority of all the votes, the election was held void.</p>

<p>Reasonable notice, either expressed, of implied from previous usage, must be given of the time, when the poll, for choice of representative, will be closed.</p> <p>Where the usage had been to close the poll at four o’clock P, M. on the day of election, and the selectmen gave notice, after counting the votes cast, at about twelve o’clock, that the poll would close at half past twelve ; and, after refusing to put a motion, duly seconded, to keep it open until four o’clock, did in fact close it at a quarter past one ; and it appeared that this was done in accordance with the previous determination of the selectmen, expressed before the meeting, to members of the political party to which they as well as the member returned belonged, and to no others; it was held that the election was void.</p>

<p>Where a list of voters for governor, lieutenant governor, and senators, was seasonably made out and published by the selectmen, and was duly corrected and revised by them with reference to and as a list for the election of representatives, but was not again published, though carried by them to the meeting; it was held, that this omission to publish was not sufficient of itself to invalidate the election.</p>

<p>A town having voted, at a legal meeting for the choice of representative, not to elect, and dissolved the meeting, a second meeting was called for the same purpose, at which a motion not to send was made and seconded, and declared, upon a division of the meeting, to be decided in the affirmative, A motion was then made and seconded to dissolve the meeting ; immediately after which, the vote not to send was disputed. The selectmen refused to put the motion to dissolve the meeting ; but a motion to send a representative being then made, seconded and carried, an election was thereupon effected. It was held, that such election was void.</p> <p>Where a member elect, being present at the meeting, declines to serve, and notifies the meeting thereof, the town may, it seems, proceed to a new election.</p>

<p>The office of University Professor of Law, in Harvard University, is incompatible with that of representative.</p>

<p>It is the duty of selectmen, presiding at a meeting for the choice of representatives* to give a reasonable time, before proceeding to the election, for the town to exercise its corporate right, to determine whether any and how many members shall be chosen ; and if they do not allow such reasonable time, but proceed with the election, notwithstanding a motion made and seconded, as to the number to be chosen, the election is void.</p>

<p>It is the duty of selectmen, before proceeding to an election, to allow reasonable debate upon, and a fair discussion of, the question, to what extent the town will be represented, provided such debate and discussion are offered; — 'Otherwise the election will be void.</p> <p>A, decision of the presiding selectman, not dissented from by his brethren, at a meeting held for the choice of representatives, is the decision of the whole board.</p>

<p>The return of a member haying stated that he was chosen <c by the minor part of the electors present at the meeting,” and it appearing that the election took place after a yote not to send, which had not been reconsidered, the election was held void.</p>

<p>The inhabitants of a town entitled to send two representatives having voted, at a legal meeting for the purpose, to elect only one, the selectmen proceeded to receive the votes accordingly. “While the balloting was going on, it was, on motion, voted to reconsider the first vote, and to elect two representatives. The balloting was then resumed, and an election of one member was effected. The selectmen then proceeded to receive votes for a second representative ; and one being chosen, it was held, that the election of such member was valid.</p>

<p>A member, who resigned the office of deputy collector of the customs on the day of his election, and afterwards was occasionally employed as an inspector, but at the time of taking his seat held no office in the customs, is not disqualified to sit.</p>

<p>A town, having voted to send one and but one representative, at a meeting held for the choice of one or more representatives, may lawfully reconsider that vote, and elect an additional member, after having chosen one.</p> <p>Where there are two persons in a town, of the same name for which votes are given, one of whom is constitutionally eligible, and the other not so, and the former is admitted to be the person for whom the votes are cast, the votes will be presumed to he intended for him.</p>

<p>Duty of the moderator of a town-meeting to make certain a vote when scrupled or doubted by a competent number of the voters.</p>

<p>A member removing from the commonwealth becomes thereby disqualified from holding his seat.</p>

<p>A member chosen during the sitting of the general court, to fill a vacancy occasioned by the removal of another from the commonwealth, but without a precept, is not entitled to a seat.</p>

<p>Vacancies in the house, other than those enumerated in the 2d section of the 6th chapter of the constitution, may be filled.</p> <p>Members of the house of representatives may constitutionally be elected to the council.</p>

<p>It was held no objection to the qualification of a member as to property, that he was rated in the valuation at two hundred dollars, personal estate, and no more, and that his real estate (but whether the whole or a part only did not appear) had been set off on execution.</p>

<p>Whether it is any objection against the validity of an election, that the vote's were given in without the list of voters being called ; that persons were allowed to vote, whose names were not on the list; and that some of the voters, whose qualifications were questioned, were allowed to withdraw their votes — Qtuere.</p>

<p>Where a member in fact performed the duties of a deputy collector of the customs under the United States, from the close of the first session of the general court to the commencement of the second, he was held to be thereby disqualified to hold his seat.</p> <p>In a discussion of the question, upon the reconsideration of a vote adopting a report, whereby the seat of a member was vacated, it was ruled by the speaker, that evidence might be introduced in support of, but not against, the motion to reconsider.</p>

<p>Three members being returned, and the selectmen having certified in the return, that two of them were duly elected, and, in relation to the third, a statement of facts, upon which they referred to the house the question whether such member was duly elected, the house thereupon instituted an inquiry into the validity of the election. Question whether votes for persons, not eligible as representatives, can be considered and counted as votes, in determining the whole number cast.</p>

<p>"Where two selectmen only, out of three, were present at an election, it was held, that a certificate, signed by one of them (the other being the member chosen) and the absent selectman, was “ to the acceptance of the house.”</p> <p>Where a person, who was in possession of real estate, of the yearly value of from, twelve to fifteen dollars, to which he had no legal title, had received assistance from the town, for the support of a minor child who was an idiot, and had also, for that reason and on account of his poverty, been exempted from taxation for several years, it was held, that he was not qualified to vote in the election of representatives.</p> <p>If one, who is not a legal voter, throw's a vote into the ballot box, before the presiding selectman has time to forbid him, it is the duty of such selectman to withdraw the vote from the box.</p>

<p>Where a member was elected by ninety-two out of one hundred and thirty-two votes given in, it was held, that the reception of one illegal vote, if proved, would not invalidate the election.</p>

<p>The receiving of votes, after the poll is closed, if irregular, is not, it seems, sufficient to invalidate an election, unless the result is thereby affected.</p>

<p>A motion 'being made in town-meeting not to send a representative, and declared to be decided in the affirmative, the vote was doubted, and the selectmen proceeded to make it certain by polling the meeting, and thereupon declared that the motion was decided in the negative. It was held not to be necessary for the selectmen, after this declaration, to call the list and check the names of those who voted on the question, though they were requested so to do ; especially as such had not been the practice.</p>

<p>Where illegal votes cast at an election do not change or prevent a majority, the election is not, for that cause, void.</p> <p>A meeting for the choice of representatives being opened at half past twelve M. and kept open until three P. M , in a town entitled to but one representative ; it was held, that the poll was not unreasonably closed.</p>

<p>In order to constitute an election, the candidate voted for must receive the votes of a majority of the electors ; and where an election is made by a general ticket, each ballot is to be counted as one vote, in determining the whole number of votes, although it do not bear upon it as many names as there are members to be chosen.</p>

<p>Where a meeting for the choice of a representative, in a town entitled to one member, was opened punctually at the time stated in the warrant, and the poll was kept open from twelve to twenty minutes, and until all persons present, having a right to vote, and desirous of doing so, had voted; it was held, that the poll was not unreasonably closed, although several persons, who had lingered outside of the place of meeting, in the expectation that it would not be opened until from one quarter to three quarters of an hour later, which was the most usual time, were thereby prevented from voting.</p>

<p>Where a meeting was held on the second Monday of November, for the choice of representative, &c., at which meeting, it was voted not to send, and then the meeting was dissolved; and the selectmen, at the written request of the requisite number of the freeholders, called another meeting for the choice of representatives, on the fourth Monday of November, at which meeting an election was effected; it was held, that, by the proceedings of the first, and the request for the calling of a second meeting, such a second meeting was made “ necessary for the choice of representatives,” within the meaning of the tenth article of the amendments to the constitution.</p>

<p>[See the introductory note to the next preceding case.]</p>

<p>The rejection of the vote of a qualified voter, whose name was not on the list, when, tendered in the balloting for state and county officers, is no objection to the election of a representative, made subsequently, in which such voter did not tender his vote, although all the elections were made at the same meeting, and the same list of voters was used.</p> <p>The rejection of a legal vote will not invalidate an election, unless the majority would have been changed or prevented by its reception.</p>

<p>At a meeting for the choice of representatives, it was voted to send four, and to elect them by separate ballotings. After two had been chosen, a motion to adjourn was made, seconded, put to vote, and declared to have been decided in the negative. The vote being doubted, the question was again put and declared in the negative. The vote was then doubted by more than seven voters, who demanded a division. At this time there was great confusion in the hall, and the division was refused by the selectmen, on the ground, that the same persons who asked it had refused to take the required and proper measures to be counted on a previous division at the same meeting. A large number of voters then withdrew, and two representatives were chosen by a smaller number of votes than had been necessary to a choice at either of the previous ballotings. It was held, by the committee on elections, and so reported by them, that the election of these two was void; but the report was rejected by the house.</p>

<p>If the proceedings at an election are conducted in a loose and improper manner, and in a way to open a door for fraud and collusion ; yet if no fraud or collusion is proved to have "been, practised, the election will not be void.</p>

<p>The word “ paupers” has acquired a precise and technical meaning, and is understood to designate persons receiving aid and assistance from the public, under the provisions made by law for the support and maintenance of the poor.</p> <p>Persons whose taxes, a by reason of age. infirmity, or poverty,” are abated, or who, for those reasons, are omitted to be taxed, by the assessors, are not “ citizens exempted by law from taxation,” within the intention of the 3d article of the amendments to the constitution; and, therefore, are not entitled to vote without paying taxes.</p> <p>Assessors have no authority, under the tax acts, arbitrarily to exclude aged and poor persons from the right of voting, by an omission or abatement of their taxes. Such omission or abatement must be with the consent, expressed or implied, of the person who is omitted to be taxed, or whose tax is abated.</p> <p>If such persons have, in fact, paid no tax, assessed within two years next preceding any election, they are not entitled to vote therein, though such non-payment is occasioned by an exemption or abatement, under the discretionary authority of the assessors.</p> <p>But if they have paid any tax, assessed within two years previous, they are entitled to vote in any election for governor, lieutenant-governor, senators, and representa tives.</p>

<p>Selectmen are not obliged to receive the vote of one, whose name is not on the list, and who does not apply to have it put there, at the time appointed by the selectmen, for the purpose of receiving such application.</p>

<p>The number of representatives to which a town might be entitled, before the adoption of the twelfth and thirteenth articles of amendment to the constitution, were to be determined by the number of ratable polls therein on the day of election.</p>

<p>A neglect of the selectmen, presiding at an election, to call and check the names of the persons voting therein, as required by the statute of 1813, c. 68, § 4, is not sufficient to invalidate the election.</p> <p>The reception of illegal votes, not sufficient in number to affect the majority, will not invalidate an election.</p>

<p>The validity of an election is not affected, by a neglect of the collector, to make a return to the selectmen, of the names of persons paying taxes, agreeably to the requisition of the statutes of 1822, c, 104, § 2, and 1833, c. 102, § 1, (Rev. Stat. e. 3, h 3, 4.)</p> <p>Nor by a neglect of the selectmen to hold a meeting, one hour previous to the town-meeting, for the revision of the list of voters, as required by the former statute-</p>

<p>A by-law of a town having provided, that town-meetings should be warned 5i by posting up a copy of the warrant fourteen days, at the least, at the public meetinghouse, except on special occasions, and then to be warned by the constable,” it was held, that the election of a representative, on the fourth Monday of November, was suedi a “ special occasion,” and that seven days' notice of the meeting, in such ease, was sufficient.</p>

<p>It is essential to the validity of an election, that the selectmen, by whom it is conducted, should be previously sworn to the faithful discharge of the duties of their office.</p>

<p>Depositions are not admissible in evidence, to invalidate an election, unless the member whose right is in question has been notified of the intention to take them, or was present at the taking thereof.</p> <p>Where the right of an elector to vote, at an election of representative on the 9th of November, 1835, was called in question, on the ground, that he had not paid the requisite tax ; and it appeared, that such elector had not paid any county tax assessed in the year 1834 or in 1835, previously to the day of the election ; but it did not appear, that no county tax was assessed between the 9th of November, 1833, and the assessment of taxes for 1834; it was held, that the evidence produced did not cover the whole term of two years next preceding the day of the election, and did not invalidate it.</p>

<p>The selectmen "have no authority, at their discretion, to adjourn a town-meeting, without a vote of the meeting; and if such an adjournment takes place, while an election is in progress, and before it is completed, it cannot be legally completed at the adjourned meeting.</p>

<p>It is an irregularity, for the selectmen to refuse to put a question, of adjournment, regularly moved and seconded, hut not sufficient of itself to set aside an election.</p>

<p>The assessors of a town have no legal authority, after the assessment of a general tax has been made, and committed for collection, to assess a poll or other tax on. any person otherwise qualified, for the purpose of enabling him to vote at any election ; nor will the payment by any person, of the tax so assessed, qualify him. to vote, under the provisions of the constitution.</p>

<p>The certificate of the selectmen of a town, in the form prescribed by law, of the election of a member therein, on some one of the days within which an election may take place agreeably to the constitution, is sufficient to entitle the member so returned to his seat; and cannot be invalidated by any certificates of other town officers, or by copies of the town records.</p> <p>A certificate or return is insufficient, which does not specify the year in which the election was made, or the certificate given.</p> <p>The date of the certificate is not material, provided the election therein recited appears to have been held on. the proper day.</p> <p>The omission of a return on the certificate, that notice was given of the election, and the person elected summoned to attend, is not sufficient to prevent the member from taking and holding his scat.</p>

<p>Illegal votes.</p>

<p>Where an election took place on the second Monday of November, and the member elect declined the office, and notified the selectmen thereof, it was held, that a second meeting for the choice of a representative had thereby become necessary, and might be lawfully held on the fourth Monday.</p> <p>It seems, that where a second meeting for the choice of a representative becomes necessary, the neglect of the selectmen to state from what cause that necessity has arisen, does not affect the validity of an election made at such meeting.</p>

<p>Bemoyal of a member from the commonwealth, to another state, disqualifies him from further holding a seat as such.</p>

<p>A member elect baying died before the meeting of the legislature, but so soon previous to the fourth Monday of November, that there was not sufficient time to give the notice required by the by-laws of the town for a meeting on that day, without posting up the notice on the Lord’s day, the house issued a precept to the town for a new election.</p>

<p>Where two or more candidates are voted for at the samo time, each piece of paper given in as a vote, and having a name or names on it, is a ballot, whether it have the requisite number of names on it or not.</p>

<p>It is not the duty of a town clerk to record anything more than what is declared by the selectmen to be a vote.</p> <p>Where a seat was claimed by one not returned a member, and it was proved, that he had offered to treat the voters, and authorized others to do so, previous to the election, the house declined acting in any manner on the petition.</p>

<p>"Where there were several ballotlngs at one election, which was controverted, and the last, balloting was proved to have been inffeetual, the member was allowed to show, that he was in fact duly elected at one of the other ballotings.</p> <p>The fact, that no notice has been given to a member returned, prior to the meeting of the general court, of a petition against his election, is not a sufficient ground upon which to refuse a hearing to the petitioners.</p>

<p>It seems that the requisition in the constitution, that every member of the house, for one year, at least, next preceding his election, shall have been an inhabitant of the town, which, he is chosen to represent, is not complied with, unless the member is also a citizen during the whole of that time.</p>

<p>The question whether an election is valid, in reference to the right of a town to be represented, in some future year, is one which is to be determined by the house, in which the question of the right occurs.</p>

<p>On the division of a town, or the annexation of a part of one town to another, the right of representation cannot he divided or apportioned.</p>

<p>Treating tile voters present at a meeting, at which a candidate was nominated for rep, resentative, who was afterwards elected, is not sufficient to set aside the election.</p>

<p>It is not competent for the legislature, when incorporating a new town from territory of one or more existing towns, to authorize such new town to elect a representative to the general court before the next decennial census of polls shall have been</p> <p>But it is competent for the legislature to provide, in such ease, that the new town shall remain as before a component part of the town or towns from, which its territory is taken, for the purpose of electing representatives, until a new decennial census of polls.</p>

<p>The constitution does not admit of an adjournment of a meeting for the choice of representatives, which it provides for being held on the fourth Monday of November, to a day beyond the said fourth Monday.</p>

<p>Petitioners against an election, not having offered any evidence to sustain their allegations, nor, intending to offer any, had leave to withdraw their petition.</p>

<p>The facts that the polls were kept open until after sun-down, is not sufficient, of itself, and in the absence of fraud, to set aside an election.</p>

<p>The fact, that the check list is not used, is not sufficient to set aside an election, provided such neglect does not occasion the reception of an illegal, or the rejection of a legal, rote.</p>

<p>The superintendent of a breakwater is not ineligible to the house of representatives, as a person holding office under the authority of the United States.</p>

<p>The fact, that tlie warrant for notifying a meeting for the choice of representatives does not specify the time for opening the poll, agreeably to the provisions of the statute of 1881), c, 42, is not sutiicient, of itself to invalidate the election.</p>

<p>Where there is no by-law, in a town, prescribing the manner and time of giving notice of its meetings, no usage can be set up to have the force of law, and to annul any meeting opposed to it, unless that usage be ancient, and so well established, and so precise and definite, that all the inhabitants may be presumed to know the exact force of the usage, as they would of a law, if one existed, and to know, also, clearly and certainly, when the town-meeting conformed to and when it violated the usage.</p> <p>It is no objection to an election on the fourth Monday of November, that the meeting on the second Monday was adjourned to the next day, but was not adjourned again to the next succeeding day.</p> <p>If the record of a town-meeting is intelligible and consistent with itself, and contains every material statement required by law, it is itself the best and highest evidence of the facts therein stated, and must stand for truth, unless impeached as fraudulent; but w’here it is inconsistent and ambiguous, or deficient as to a material fact, the ambiguity may be explained, or the deficiency supplied, by extraneous evidence.</p> <p>If it cannot be ascertained (either by the record, or by evidence) what was the whole number of votes given in at an election, it is void, for uncertainty.</p>

<p>"Where the record of a town-meeting is defective, in not stating the whole number of ballots given in at an election, the defect may be supplied by evidence.</p>

<p>Where a meeting was" warned for three o’clock, in the afternoon, and the poll was • closed in less than two hours, these circumstances were not considered sufficient, in the absence of a fraudulent intent, to invalidate the election.</p>

<p>A meeting for the choice of representatives may be adjourned from the place where it was originally called to some other place.</p> <p>It is competent for a town-meeting, after having voted not to send representatives, to adjourn to the next day, for the purpose of reconsidering that vote; and an election of representatives, effected at such adjourned meeting, without any further vote on the reconsideration, is valid.</p> <p>An article in the warrant for calling the meeting for the choice of representatives, “ to determine the number of representatives the town will choose to represent them, at the general court, to be held at Boston on the first Wednesday of January next/’ is sufficient to authorize the choice of representatives.</p>

<p>Petition against an election, upon an understanding between the parties, allowed to be withdrawn.</p>

<p>Where a member, who had removed his residence from the town, for which he was elected, on the 18th of March preceding his election, and had removed back to the same on the 5th of October following, was elected as representative for such town, at the succeeding general election in November; it was held, that he had not been an inhabitant of the town for a year preceding his election.</p>

<p>The constitution does not admit of an adjournment of the second meeting for the choice of representatives, which it provides for being held on the fourth Monday of November, to a day beyond such fourth Monday.</p> <p>Meetings for the choice of governor, lieutenant-governor, and senators, cannot be adjourned to a subsequent day.</p>

<p>In towns where no state or county tax is assessed, the inhabitants are nevertheless entitled to vote in the election of state officers.</p>

<p>Persons residing on lands purchased by, or ceded to, the United States, for navy yards, arsenals, &c., in this commonwealth, the state only reserving concurrent jurisdiction, as to the service of process therein, are not liable to taxation, and do not by such residence acquire any elective franchise, legal settlement, or right to the benefit of common schools, as inhabitants of the towns in which, such territory is situated.</p>

<p>If there are hut three selectmen in a town, and one of them becomes incompetent to act, and a second is elected representative, the third may certify the election, and the member himself may sign the certificate, even after he has.taken his seat, and his return has been controverted for want of a proper certificate.</p>

<p>If the inhabitants of a town yote, previous to balloting for a representative, to dispense with the check list, an election effected at such balloting is void.</p>

<p>Where the selectmen, in the honest belief that illegal votes had been received, overturned the box and scattered the votes, and commenced the balloting anew; it was held, that this was not such an irregularity as would avoid an election subsequently effected.</p>

<p>Where it appeared, upon examining the record of a town-meeting, that the whole number of votes recorded exceeded the aggregate of the votes for the several candidates, (one member only being voted for,) evidence was received to explain the discrepancy, and to show that the record was erroneous.</p>

<p>Residence,-;Alienage.-Use of check list.-Payment of a tax.-Practice.-Illegal votes.</p>

<p>The undergraduates of a college or other literary institution, residing in the town where the same is established, for the purpose merely of pursuing their studies, and with the intention of returning to their homes, whenever their connection with such institution shall be dissolved or severed, do not, by their residence in such town, become legally qualified voters therein.</p>

<p>Removal from the town, for which one is elected, to another town within the state, is no disqualification.</p>

<p>A person, who is not returned as a member, has no right to take a seat and act ai such, even though he is duly elected, and ought to have been returned.</p> <p>An election for the choice of representatives being held at the same time with an election for register of deeds, votes, bearing the names of persons not resident in the town, and with the words “ for register of deeds '* thereon, if deposited in the box appropriated for the reception of votes for representatives, are not, it seems, to be counted in making up the whole number of votes given in for representative.</p>

<p>The overturning of the ballot-bos, and thereby breaking up a balloting which had commenced, under a belief on the part of the selectmen, that a person had voted twice, is an irregularity ; but if done without any fraudulent purpose, and especially if it receives the tacit assent of the electors, and is further acquiesced in by a vote not to dissolve the meeting, it is not sufficient to invalidate an election subsequently effected.</p> <p>Where a meeting for the choice of representatives, which was fully attended, refused at a late hour to dissolve, but proceeded to ballot again, and the selectmen, after the lapse of from twenty to thirty minutes, closed the poll, just before the sun was set, it was held, that the conduct of the selectmen, in thus closing the poll, furnished no evidence of an intention on their part to prevent electors from voting.</p>

<p>In order to entitle a rejected rote to be counted, the voter must attend the meeting and tender his vote at the balloting, when the election takes place; and it is not sufficient that the voter’s name is not on the list of voters, in consequence of which he does not attend the meeting, or that he tenders his vote and is refused at any other balloting.</p>

<p>An election effected at a balloting which commenced after sunset is yoid.</p>

<p>Three ballots having been found in the ballot-box, bearing the name of the same candidate, and so folded and doubled together, as to satisfy the selectmen that they were all put into the box by the same person, the selectmen thereupon rejected two of them and counted the third ; and there being no evidence to contradict the conclusion of the selectmen, or to impute any unfairness to them, the house refused to set aside the election on the ground of such rejection.</p> <p>The intention of a voter, testified to by himself, as to his residence, is to be taken as conclusive, unless impeached.</p>

<p>An election, ■which takes place at a meeting, the warrant for calling which does not specify the time of opening the poll, and at which the poll is not kept open two hours, as required by statute lb30, c. 42, § 2, is void.</p>

<p>One, who is duly returned a member, has a right to take a seat and act as such, even though he is not duly elected, and ought not to have been returned, if the choice of a representative is stated in the warrant for a town-meeting, the town may properly entertain any motion in relation to that subject; and a motion to reconsider the vote of a former meeting, to send a representative, is incidental thereto, and is in order, before the poll is opened.</p> <p>An election, which takes place after a vote that the meeting be dissolved, and a declaration thereof made to the meeting by the presiding officer, is void.</p>

<p>A meeting being called and held for the election of state officers, to he voted for on one ballot, and of a representative in congress, to be voted for on another ballot, and in separate boxes appropriately labelled, the selectmen gave notice, that votes found in the wrong box would not be counted ; it was held, that a vote for representative in congress, found in the box appropriated to the votes for state officers, was rightly rejected.</p>

<p>An election, at which the poll is not kept open two hours, is void.</p>

<p>The petitioners against an election having offered to prove, before the committee, that at the meeting when the same took place, the poll was not kept open two hours ; but not having made any allegation in the petition to that effect, the committee were of opinion, that the objection came too late.</p> <p>A person over seventy years of age, who is the owner of taxable property, which the assessors, in their discretion, exempt from taxation, on account of the age and poverty of the owner, is not entitled to vote, within the exception contained in the third article of the amendments to the constitution.</p>

<p>An election, which was made without checking the names of the voters, was held void, although it appeared, that the selectmen knew every man, whose name was on the list, and stood by the box during the balloting, with the list before them, and made oath, that- no person voted in the election, whose name was not on the list, and had not been called at the previous balloting.</p>

<p>If, after the closing of the poll, objection is made that it has not been kept open two hours, and persons claim a right to vote, the poll may be opened again by a vote of the town, for the purpose.</p>

<p>Where in the warrant for a town-meeting on the second Monday of November, the subject of a choice of representative is wholly omitted, this is a sufficient cause for calling a meeting for the choice of representative on the fourth Monday.</p>

<p>The mere facts, that a student, who has a domicil in one town, resides at a public institution in another town, for the sole purpose of obtaining an education, and that he has his means of support from the former, do not constitute a test of Ms right to vote and of his liability to be taxed in the latter town. He obtains this right and incurs this liability only by a change of domicil; and the question, whether he has changed his domicil, is to be decided by all the circumstances of the case.</p>

<p>■Where the by-laws of a town required notices of town-meetings to be served by posting up l£ attested copies ” of the warrant therefor, and the notices for a particular meeting were signed by the constable, and communicated the substance of the warrant with reasonable certainty, and in a form which had been adopted on previous occasions, though such notices were not, in a technical sense, attested copies, and indeed contained no definite proposition whatever, if grammatically considered ; an election, made at the meeting so notified, was held valid.</p> <p>The neglect of the officer, who served the notice for a town-meeting, to state in his return. that he had served it in due season, appears to have been deemed immaterial to the validity of an election effected at such meeting.</p>

<p>It seems, that the neglect of selectmen to specify, in their warrant for a meeting for the choice of representatives, the time at which the poll is to be opened, (according to the act of 1839, c. 4.2, § 2,) is not sufficient to invalidate an election made at such meeting.</p>

<p>An election, effected at a balloting which commenced after sunset, was held void, under the act of 1839, c. 42, § 3.</p> <p>The actof 1843, c. 94, in addition to the act of 1839, c. 42, “ concerning elections,” did not repeal the third section of the latter.</p> <p>A vote to dissolve a meeting having been doubted, and the doubt settled by a show of hands, the vote was again declared in the affirmative, the meeting not objecting to this mode of settling the doubt. The doubt being again renewed, the presiding officer put the question a third time, and declared it to be decided in the negative, upon a count of the voters present taken by him. It was held, that an election which took place after this proceeding, was not thereby invalidated.</p>

<p>The petitioners against an election, having been notified by the committee on elections of the time appointed for hearing them, and having neglected to bring forward evidence in support of their allegations, were deemed to have abandoned their case, and had leave to withdraw their petition.</p> <p>The certificate of a town clerk is not evidence of the time during which the poll at an election was kept open.</p>

<p>Under the Statute of 1830, c. 42, is concerning elections,” an election made at a second balloting, at which the poll is kept open after sunset, is void.</p> <p>Where the cases of two members, voted for at the same balloting, stood upon the same ground, the fact that one of them was too side to attend to, or even be informed of, the petition against their election, did not prevent the committee from hearing and deciding the cases of both.</p> <p>Pay allowed to members whose seats were vacated, and expenses of sickness also to one of them.</p>

<p>If petitioners fail, after due notice, to present evidence in support of their case, they will be deemed to have abandoned it.</p> <p>It seems, that a certificate of the selectmen and clerk of a town, stating what occurred at a meeting at which they officiated, is not evidence.</p>

<p>P. removed from Dudley to Webster, in October, 1842, and was employed in Webster up to the time of the election in 1843, intending during all that time to remove his family to W., as soon as he could find suitable accommodations for them. He did not in fact remove them before August, 1843. It was held, that he was not a legal voter in Webster at that election.</p> <p>After a report, granting to petitioners against an election leave to withdraw, had been agreed to, and the time had elapsed within which the vote could be reconsidered, the house recommitted the report to a committee, and, after considering a new report made by them, declared the seat in question -vacant.</p> <p>M. applied to one of the selectmen on the morning before an election to have his name put on the list of voters. A friend applied, also, in his behalf, for the same purpose, to another selectman. Both those officers promised to put the name on the list, but omitted to do so. M.’s vote, however, was received at the poll; but upon its appearing that his name was not on the list, he was directed to remove his vote from the ballot-box, and did so. It was held, that M, was a legal voter, and that his vote was wrongfully rejected.</p>

<p>At a meeting for the election of representative, held subsequently to the passing of the act of 1843, c. 94, the poll was opened at 9 o’clock in the forenoon, and kept open, by a vote of the meeting, until after sunset; it was held, that the election was not thereby invalidated.</p>

<p>If petitioners fail, after due notice, to present evidence in support of their case, they will be considered as abandoning it.</p>

<p>Persons, who have been exempted from taxation on account of their poverty; under the provisions of the eighth clause of the 5th section of the Rev. Sts., c. 7, and J5t-1843, c. 87, § I, for two successive years before their arrival at the age of seventy, are not entitled to vote in the election of governor, lieutenant-governor, senators, and representatives, under the third article of the amendments to the constitution, as persons exempted by law from taxation.</p>

<p>The omission of a return upon the certificate of a representative, stating that he has been duly notified ofhis election and summoned to attend the general court, does not affect the validity of the election or of the return.</p>

<p>The second section of the act of 1839 c* 42, providing that the warrant for notifying a meeting for the choice of certain officers shall specify the time when the poll shall be opened, is to be considered as directory to town officers; and the omission of such specification in the warrant subjects the selectmen to the penalty provided in the act; but. except in cases of fraud, will not invalidate an election made at a meeting held in pursuance of such warrant.</p> <p>The fact, that a person who claims to have been elected a representative at a meeting, at the close of which the presiding officers declared that no choice ha4 been effected, was a candidate for the same office at a subsequent meeting, cannot impair any right acquired by him at the former meeting.</p> <p>After the result of an election has been declared, it is proper for the selectmen to add to the whole number of votes, one that has accidentally escaped notice, and thereupon to make a new declaration, although the result of the election is thereby changed.</p> <p>The omission, in a warrant for a meeting for the choice of representative, of an article to determine -whether the town will elect one, will not preclude the town from voting upon that question, and, therefore, will not invalidate an election effected at a meeting held under such warrant.</p> <p>The age of a voter may be proved by the record of his birth inserted in the town records, coupled with evidence of his identity.</p> <p>If it appears from the evidence, that the poll was closed before the close of the meeting, it may be inferred, in the absence of counter evidence, that it was legally closed by a vote of the town.</p> <p>At the hearing of petitioners against a claim for a seat, the committee may consider objections not stated in such petition.</p>

<p>Under Stat. 1844, c. 78, the poll is to be considered as opened, when the ballot-box is presented to the voters, and they are called on to prepare their votes for a balloting.</p> <p>It is improper to allow any one to vote after the ballot-box has been turned,</p> <p>it is clearly contrary to the express provisions of law, to delay the public declaration of the result of a balloting, after the votes have been counted, and the result ascertained.</p> <p>It seems, that a ballot deposited after the result of a balloting has been ascertained, though not declared by the presiding selectman, is not to be counted.</p>

<p>'Whether there can be a valid election of a representative without the agency of selectmen, Queere.</p> <p>The act incorporating the town of Blackstone provided, that the town should remain for a certain period a part of the town of Mendon, for the purpose of electing a representative ; that the warrants for calling meetings for the election of representatives should specify ten o’clock, A. M., as the hour at which the poll should be opened; and that the poll should be opened accordingly, and closed by one o’clock, P. M. It was held, that it was not necessary that the poll should be opened, but that the voters of the two towns might properly vote not to send a representative, and might thereupon dissolve a meeting called for the election of one.</p> <p>A warrant for calling a meeting for the election of a representative specified 10 A. M. as the hour at which the meeting would be opened, and the weight of evidence was deemed to be, that the meeting was not opened before that time. After the meeting was called to order, a motion not to send a representative was made, on which the selectmen declared the vote to be a tie, but after a conference with the town clerk, who had also counted and found the vote to be against sending, put the question again, and declared the result to be a vote not to send. One who had voted in the minority then moved to reconsider this vote. Pending a discussion of his right to make the motion, a motion was made to dissolve the warrant and carried in the affirmative. This vote was doubted, but no notice was taken of the doubt; and the selectmen retired from the desk. A moderator was then chosen and an election had, of which the result was declared to be the choice of a representative, whose election was certified by the moderator, and by four persons who acted as his assistants. It was held, that such election was void.</p> <p>A vote to dissolve the warrant (that being the usual motion in the town) is equivalent to a vote to dissolve the meeting.</p>

<p>H. was an inhabitant of the town of P. on the twentieth day of April, 1847. He, then being the lessee of a public house in the city of B., and liable for the rent thereof, and finding that his sub-lessee had not paid the rent, went to B. and proceeded to keep the said public house, placing his sign upon its front, and haying the principal part of his family with him, but at all times preserving the intention to dispose of his lease, upon the occurrence of a good opportunity to do so, and returning to P. While keeping the house as aforesaid, he was chosen a representative of the town of P. It was held, that he was an inhabitant of P. and his election valid.</p>

<p>A person, not legally elected a representative, though, holding a certificate of Ms election, and having a seat in the house under the same, has no power to resign his seat.</p>

<p>A vote for a candidate who is constitutionally ineligible is not to be counted.</p> <p>Upon a question of fact, arising at an election, which the selectmen, in the course of their duty, as presiding officers, are bound to determine, their decision is presumed to have been right, until the contrary is clearly proved.</p> <p>Where it clearly appears, that a voter deposited a vote for one person, by mistake, intending to vote, and supposing that he did vote, for another, it seems that his vote is not to be counted.</p> <p>It is the duty of every town to provide itself with proper ballot-boxes.</p>

<p>The reception of illegal votes, sufficient in number to change or prevent a majority? is not sufficient to invalidate an election, unless it also appears that such votes were for the person elected.</p> <p>It seems, that a ballot, having the same name twice written upon it, is to he counted as one vote.</p>

<p>Where a representative, after taking his seat in the house, leaves the commonwealth, without expecting to return before the prorogation of the general court, of which he is a member, a precept will not issue for a new election.</p>

<p>The presiding selectman, at a meeting for the choice of a representative, having suppressed debate on a motion, i( to proceed to another ballot,” which he did not hear made ; it was held, that such suppression was not improper.</p> <p>The poll is not opened in a disorderly manner, merely because there is considerable noise and disorder, at the time, provided there is no improper voting.</p>

<p>The warrant and notices, for a meeting for the election of representative, which were dated on the I6th of November, 1850, having directed the electors to meet on Monday, the 25th of November next, “ to choose a representative to represent them in the general court, to be held at Boston, on the first Wednesday of January next it was held, that the informality of the warrant and notices was not sufficient to invalidate an election on the 25th of November, 1850.</p>

<p>Where a meeting was held, for the election, at the same time, of governor, lieutenant-governor and senators, representative in congress, and representative in the general court; and three separate boxes properly labelled were provided for the reception of the votes; it was held, that a ballot marked for “representative to congress,” and describing the candidate therefor, as an inhabitant of another town, found in the box appropriated to the votes for representative in the general court, could not be counted to make up the whole number of votes given for the latter.</p>

<p>A meeting being held for the election of a representative, three ballotings took place, at the last of which an election was effected. At the first balloting, the names of all persons who voted were cheeked, according to the statute. At the two last bal-lotings, the names were not checked, but the list was held by one of the selectmen, and so far used, that no person was permitted to vote, until it was ascertained that his name was on the same ; it was held, in the absence of all fraud, or double voting, that the neglect to use the check list did not invalidate the election.</p>

<p>B.j a minister of the gospel, having closed an engagement as such in E., where his family continued to reside, went to G. in September, 1849, and, after preaching to a society there a short time, made an engagement with a committee of the society, to continue his services until the first day of March then next, at which time the committee's authority expired. This engagement was made after an unanimous expression of a desire, at a voluntary and informal meeting of the society, that B. should be engaged, with a probable view to his settlement for a year from the first of March, as had been the custom of the society. The society thereupon gave up a candidate whom they had previously employed and intended to settle; and B. gave up a partial engagement which he had made to preach with another society, B. was informed by the committee, that the society were well pkased with him, and that his stay with them would probably be permanent, and he expressed his intention to remain. B, preached at G. on the 21st of November, and on three other Sundays in the same month, boarding at the ho ted in G. while his family remained in E. During this time, B. was looking for a house in G,, but had some difficulty in finding one. B. continued to preach in G., to which he removed his family in December, 1849, and was residing there at the time of the general election in November, 1850, when he was elected and returned a member from the town of G. It was held, upon the foregoing which were the principal facts in the case, that the inhabitancy of B. in G., for a year previous to his election, was not thereby disproved.</p>

<p>Whether the decennial census of the inhabitants of a town, taken by the assessors thereof, and returned into the secretary’s office, as the basis of the representation of such town for the nest ten years, can be shown to be erroneous, with a view to increase the town’s right of representation — Qucere,</p>

<p>Where an election was controverted, on the ground, that previous to the balloting, at which it took place, a motion was seasonably made and seconded, not to send a representative, which motion the selectmen refused to put, but proceeded with the election ; and the committee on elections reported thereon, that upon the evidence the motion was seasonably made, and not being put by the selectmen, the election subsequently effected was void. A minority of the committee submitted a report, concluding that the motion was not seasonably made, but that if it were, the election ought not to be thereby rendered void ; and, consequently, that the petitioners should have leave to withdraw their petition. The house amended the report of the committee by substituting, for the conclusion thereof, the conclusion submitted by the minority ; and the report, as amended, was agreed to.</p>

<p>The legislature have constitutional power to change the boundary lines of counties, for all purposes for which counties are established, except that of constituting senatorial districts.</p> <p>The legislature have constitutional power to change the boundary lines of towns, for all purposes other than those incident to the election of senators and representatives ; hut, in changing the boundary lines of towns, by annexing a part of one town to another, or by constituting a new' town from one or more existing towns, the legislature may reserve and secure to the inhabitants residing on such portion or portions, a right to vote in the election of representatives, with the town or towns from which such portions are taxon, until the expiration of the next preceding apportionment of representatives,</p>

<p>Where the mayor and aldermen of a city declined to correct a mistake in the statement of votes for representatives returned from one of the wards therein, on being furnished with an amended return by the ward officers, but adjudged, that no election had been effected, and thereupon ordered a new election ; and it appeared, that upon the corrected return, an election did in fact take place, the house admitted the members so elected.</p>

<p>The clerk of one of the wards in the city of L, having made up hid record, of the votes given in at an election for representatives, at his own. cotmting-rooni, after it votes had been declared and the meeting had been dissolved, a transcript of ⅛ record thus made was duly signed by the ward officers and gent to the city clerk and a mistake having been subsequently discovered in the record by the ward of! cersyfchey amended it, and sent a transcript of the amended record to the city elerl by whom the same was laid before the mayor and aldermen, who did not eonsidi themselves authorized to act upon it; it was held, that those persons, who received a majority of the votes in all the wards, and not those, who received a majority in the oiher wards only, were duly elected.</p>

<p>Where a town clerk died, and the selectmen appointed a clerk pro tempore, -who was duly sworn, and acted as clerk at an election of representative ; and it did not appear that there was any fraud or intentional neglect on the part of the selectmen, or any objection on the pari of the voters; the election was not thereby invalidated.</p>

<p>A reasonable time ought to be allowed, after a meeting for the choice of a representative is opened, to make, discuss and determine, a motion to send or not to send, especially when a town is not constitutionally entitled to send a representative every year: and if such reasonable time is not allowed, an election subsequently effected is void.</p> <p>It seems, that, under the statute of 1851, c. 226, if an unsealed envelope is found in the ballot-box, the presumption is to be, till the contrary appears, that it was properly sealed when deposited; but if an envelope is unsealed when deposited, the vote enclosed in it is to be rejected.</p> <p>A vote for representative, since the statute of 1851, c. 236, cannot legally be counted unless it is enclosed in an envelope.</p>

<p>The election of one of the members returned from Boston being controverted on the ground of a want of residence, it appeared that the member, who had been an inhabitant of Boston for many years, had been accustomed to send his family out of town during the summer months, visting them ocassionally, and retaining rooms in Boston for his own use. In 1859, the member built a house in Newton, to which his family removed in April, 1851, but he remained in Boston, wher he kept rooms for his own use, and also for the occupation of his family in the country, when his business would permit; but his expressed intention was to remain an inhabitant of Boston. It was held, that no changed of inhabitancy proved.</p> <p> A removal from Boston ( with one's family) just before the first of May, raises a strong presumption of a change of inhabitancy, Out that presumption may be rebutted by evidence of the intention of the party so removing. </p>

<p>Where three representatives were to be elected, and the votes for governor, lieutenant-governor, senators and representatives, properly designated, were deposited in the ballot-box in envelopes, agreeably to the provisions of the statute of 1851, c. 220, § 1; and in one envelope, a vote for governof, lieutenant-governor, senators and two representatives, was upon one piece of paper, and a vote for one representative upon another ; and, in another envelope, a vote for three representatives was on a separate piece of paper ; it was held, that each of these envelopes was properly counted as a ballot, containing votes for governor, lieutenant-governor and senators, and for three representatives.</p>

<p>Whether the ballots contained in unsealed envelopes are to be counted as votes— Qucere,</p> <p>Whether a separate ballot, found in an envelope, containing a ballot for governor, lieutenant-governor, and senators, but, without any designation of the office for which it was intended, can be counted as a vote for representative — Qucere,</p> <p>Whether ballots found in envelopes that have been used, opened, and thrown away, and carried from the meeting, can be counted — Qucere,</p>

<p>"Where an election was controverted on the ground that the votes in unsealed envelopes were rejected, which, if they had been received, would have prevented an election; and the committee on elections reported thereon, that the number so received was not certainly proved; that they were not examined until more than an hour afterwards, during which time, they were out of the custody of the selectmen; that only three were certainly proved to have been received, one of which was unsealed when deposited, and two unsealed envelopes which were examined contained votes for the sitting member; it was held, that such election was valid.</p>

<p>"Where the selectmen, after counting the ballots given in at an election for representative, and declaring that an election had been effected, subsequently found among the used and broken envelopes two additional ballots for representative, and, thereupon counselled together, added the votes so found to the count, and declared that no election had taken place; it was held by the house, that such ballots ought not to have been counted.</p>

<p>If some of the rotes giren in at an election for representative are not taken from the envelopes and counted, the election will not be thereby affected, provided it is admitted or proved, that the member elected received. a majority of all the votes.</p> <p>It Is the duty of selectmen, with the assistance of the town clerk, to receive, sort and count the votes at an election for representative ; but if they call in the assistance of other persons, in the performance of this duty, that circumstance will not, of itself, invalidate an election.</p>

<p>At a meeting for the election of a representative, held on the fourth Monday of November, the selectmen refused to put a motion, properly made and seconded, to dissolve the meeting, but proceeded to call for and receive votes fora representative ; it was held, that an election, so effected, was void.</p> <p>It is not necessary to the validity of a meeting, for the election of a representative, on the fourth Monday of November, that a petition should be previously presented to the selectmen to call the same, or that they should state any reason, at the opening of the meeting, for having called it.</p>

<p>Petitioners against an election, at their own request, hare leave to withdraw their petition.</p>