¶1The Committee on Elections, to whom was referred the petition of Charles H. Mansfield for a recount of the votes east for representative in the thirteenth Essex district, for an investigation of certain alleged illegal voting for representative from said district, *4and asking that said petitioner may be declared to have been duly elected a member of this House, having heard the parties, present the following report: —
¶2The thirteenth Essex representative district comprises the towns of Saugus, Topsfield, Lynnfield and Middleton. In this district seven hundred and fifty-two votes were cast for representative. Of these, Charles S. Hitchings received three hundred and sixty-eight, Charles H. Mansfield three hundred and sixty-four, and all others twenty, as appeared from the returns from said district, and said Charles S. Hitchings was declared duly elected as representative from said district, and a certificate of election, in due form of law, was issued to said Hitchings. No evidence was offered of any inaccuracies in the count in said district, and any claim thereto was expressly waived by the petitioner.
¶3One James W. Ray voted at said election in the said town of Lynnfield for the said Charles S. Hitchings for representative from said district. On the thirtieth day of October, A.D. 1885, said Ray moved his family and household furniture to Lynn, in said county, and- out of the said district, and there took up his permanent abode, having then no intention to resume his former residence in Lynnfield.
¶4One Charles Blakeley voted at said election in the said town of Saugus for the said Hitchings for representative from said district. Said Blakeley had spent the greater part of the year in Saugus for the last four years, and had worked in Lynn and boarded there during the winter months, with the exception of one winter when he had worked in Lynn and boarded in Saugus. 1-Ie had been assessed for a poll tax and had been a registered voter in Saugus for several years. He testified that he was only temporarily in Lynn, where he expected to remain until about the first of April next, and expected to return to Saugus next summer ; that he was unmarried, and had no parents living. The testimony of this witness was contradictory.
¶5Under the third ' amendment to the Constitution, residence within the town or district, in which the right to vote is claimed, for six calendar months preceding the election is necessary. “Residence,” as used in the Constitution, is “equivalent to the familiar term domicil.” Opinion of the Justices, 5 Met. 587, 588. Domicil is a question of fact. A man must have a domi-cil somewhere, and he cannot have more than one domicil at the same time for one and the same purpose. It is obvious, then, that an existing domicil continues until another is acquired, and that the acquisition of a new domicil immediately terminates the *5preceding one. Thorndike v. Boston, 1 Met. 242; Opinion of the Justices, supra; Ordway v. Howe, Loring & Russell’s Election Cases, 3. So, too, it is well settled that a “domicil once existing cannot be lost by mere abandonment, even when coupled with the intent to acquire a new one, but continues until a new one is in fact gained.” Shaw v. Shaw, 98 Mass. 158.
¶6Applying these principles to the present case, it is clear that Ray was not a resident of the town and district for six calendar months preceding the election, and that his vote was illegal, and should be deducted from the plurality of four votes received by said Hitchings according to the official returns. Applying the same principles to the case of Blakeley, your committee came to the conclusion.that he had acquired no new domicil in Lynn, even if he had left Saugus with the intention of acquiring one elsewhere, and that he was, so far as residence was concerned, a legal voter in the town of Saugus, and that his ballot should be counted.
¶7It was also claimed that the clause of the Constitution requiring the payment of a State or county tax as a prerequisite to the right to vote had not been complied with, and that certain votes should be thrown out for that reason ; and that there were other alleged irregularities, sufficient in number to change the result of the election. But independently of these alleged irregularities, which were not fully investigated and consequently are not reported on, we believe that there is still another question in issue that disposes of this case, and renders it unnecessary to continue the investigation.
¶8In chapter 298 of the Acts of 1884 it is provided (section 27) that the registrars of voters in towns shall, at least thirty days before the Tuesday next after the first Monday in November annually, make correct alphabetical lists of all the persons qualified to vote for the several officers to be elected at that time ; and shall, at least thirty days before said Tuesday after the first Monday in November annually, cause such lists in towns to be posted up in two or more public places.
¶9Section 21 of the same statute provides that, after the lists of qualified votes are printed and posted as now required by law, no name shall be added thereto, unless the applicant for registration appears in person before the registrars or assistant registrars and proves his claim to be registered; while section 20 provides that the registrars before registering any person whose qualifications have not been previously determined by them shall examine him under oath in regard to his qualifications to vote, and shall require such person to write his name and read in the official *6edition thereof at least three lines of the Constitution, other than the title, in such manner as to show that he is not prompted nor reciting from memory, before they place his name on said register, unless such person is exempted by article 20 of the amendments to the Constitution.
¶10It appeared in evidence that at least fifty persons were registered in the town of Saugus, after the posting of the lists as required by section 27, without appearing in person before the registrars as required by section 21 of the statute. It also appeared that at least thirty-two of these voted in said election; but who these were, and whether there was a still larger number of persons so registered and voting, your committee were unable to decide conclusively without the personal examination of over one hundred persons. No question has been made as to the legal qualifications of such persons to vote in said elections, providing they had been properly registered.
¶11Was such registration illegal, and should the votes of persons so registered be rejected ? It cannot be denied that under section 21 it was the duty of the registrars to require the personal attendance of all applicants for registration. The statute is explicit in its terms, and no other construction was claimed at the hearings before the committee.
¶12The more difficult question is whether the provisions of section 21 are mandatory or directory. Was their observance essential to the validity of the election, or simply an irregularity in the manner of conducting it? Is the requirement of personal presence as a prerequisite for registration a condition upon which the right to vote depends ?
¶13There are many cases in which it has been held that certain informalities in election proceedings did not render the vote itself illegal. A very large number of these have been cases where some irregularity existed in the proceedings of the election officers after the election. Johnson v. Cole, Loring & Russell's Election Cases, 36; Beck v. Plummer, Ib., 40; Newcomb v. Holmes, Ib., 57; Haynes v. Hillis, Ib., 300. In such cases, where the vote has been fairly and legally expressed, and can be determined, no subsequent act is allowed to operate to its exclusion. In other cases, the failure to properly call the meeting has been held insufficient to invalidate the election, it being shown that in fact notice thereof was given, and that no injury resulted from the failure to observe such provisions. Haws v. Darling, Loring & Russell’s Election Cases, 18; Newcomb v. Holmes, Ib., 57; Bird v. Merrick, Ib., 115; Hillman v. Flanders, Ib., 338; Commonwealth v. Smith, 132 Mass. 289. In cases like these the statute provisions *7have been construed to be directory. In both of these classes it will be noticed that the irregularity was that of the election officers and that no fault or remissness could be imputed to the electors.
¶14The case of Whitaker et al., petitioners, Loring & Russell’s Election Cases, 360, was called to the attention of the committee, but that case is not an authority on the point in controversy. It was a case arising under sections 4 and 12 of chapter 7 of the Public Statutes, providing for the use of envelopes for the enclosure of ballots. The statute prescribes the kind of envelope to be used, and declares that no other envelope shall be used. A vote was cast in an envelope, but not of the kind prescribed by statute. It was held, in the Senate, that the vote should be counted. A similar case before this House was decided differently. Taft v. Cole, Loring & Russell’s Election Cases, 45. But whether the case of 'Whitaker was rightfully decided is immaterial. The decision in that case was largely based upon a comparison of the various statutory provisions relative to the subject. The fact that the purpose of the statute was to secure the privilege of secrecy to the voter marks the wide distinction between that case and the present.
¶15Where a statute expressly provides that a failure to observe its provisions shall invalidate the election, or any votes cast therein, there can be no doubt as to its construction. In other cases the nature and purpose of the thing to be done, the antecedent legislation and the particular language used must be considered. As a general rule, however, negative words make a statute imperative. Dwarris on Statutes, 611.
¶16In the present case the statute is direct and positive. “ It is prohibitory in expression and effect; it does not say simply that a certain thing shall be done, but it declares in unequivocal terms that a certain thing shall not be done.” Taft v. Cole, ubi supra. It declares that “no name shall be added” to the list “ unless the applicant appear in person.” This provision goes to the ascertainment of the qualifications of the electors, and does not come within the principle of the cases before considered.
¶17Section 9 of chapter 7 of the Public Statutes supplements this provision, and provides that no person shall vote at an election whose name has not been previously placed on the list. It will be noticed that this section and the one under discussion are so similarly drawn that any construction founded on the language used must be identical in each case. The provisions of section 9S above cited, have been held to be mandatory and their non-observance a proper ground for the rejection of votes cast in violation of their provisions. Capen v. Foster, 12 Pick. 485; Whitaker et al., petitioners, supra.
¶18*8Both provisions are, moreover, directed to the same purpose, namely, to secure the proper proof of the qualifications of those desiring to exercise the right of suffrage, and to prevent error and fraud in elections. These sections must be read together, as both relate to the same subject-matter. No name shall be added to the list unless the applicant appear in person, and no person shall vote unless his name is on the list. Your committee came to the conclusion that the section of the statute under consideration was mandatory, and that it came within the principle laid down in Capenv. Foster, supra.
¶19To hold these provisions directory merely would leave the determination of the voter’s qualifications to evidence heard after the election, and to nullify all statutory provisions requiring the determination of the right of suffrage prior to casting the ballot, placing the burden on those who claim illegal votes were cast, not only to search out the alleged illegal voters, but to show their want of qualifications, instead of requiring them to appear and prove their right to the ballot.
¶20This is not wholly a new question. A leading authority (Brightly, Leading Cases on Elections, 452) says: “ Perhaps the most important question which has arisen under this head of the election law is, whether the omission of the election officers to require from unregistered voters the preliminary proof required bylaw is a mere irregularity or a matter of substance which renders such votes absolutely illegal. ... If the election officers receive a vote without that preliminary proof which the law makes an essential prerequisite to its reception, such vote is as much an illegal one as if the voter had none of the qualifications required by law. The voter might not be able to produce the legal preliminary proof, and it would not appear to be just to the candidates to permit a vote to be made legal by evidence subsequently procured, which was absolutely illegal when received by the officers.” See also State v. Hilmantel, 21 Wis. 562. In Michigan, under a statute expressly forbidding all voting by persons not registered, it has been held that all votes cast by legal voters who were not registered, because there had been no board of registration in existence to register before, should be rejected. People v. Popplekom, 16 Mich. 342. And it has been held, by a committee of this House, that a person registered after the expiration of the time fixed by law cannot legally vote. Claflin v. Wood, Loring & Russell’s Election Cases, 353.
¶21The antecedent legislation upon this subject also leads to the same conclusion. Under the Public Statutes (chap. 6, sect. 24) it was the duty of the registration officers to enter on the list all *9persons known to them to be qualified to vote, and no personal attendance was required in such ease. When this whole subject was carefully revised in 1884 this clause was repealed, and that requiring personal attendance was passed. If the Legislature had intended to leave the determination of qualifications, necessary in order to register, to the unofficial knowledge of the board of registration, this section would not have been repealed.
¶22And, finally, any other construction than that adopted by the committee would lead to the nullification of the law, and to the abuses which it was passed to prevent.
¶23It was admitted at the hearings that the alleged illegal voters had been before the board the preceding year ; that their qualifications, as then existing, had been determined; and that, if they had come before the board in person, these qualifications, so far, as they were of such a nature as to continue from year to year without change, need not have been redetermined. (Sect. 20, chap. 298 of the Acts of 1884.) But this cannot change the result. Section 21, requiring personal appearance, cannot be construed to mean one thing for one class of persons and directly the opposite for another. Its construction must be uniform in all cases. But apart from this, the determination of the right to vote depends upon many considerations of a fluctuating nature which may exist at one time and not at another. Chief Justice Shaw, in Capenv. Foster, supra, gives many of the qualifications as follows: —
“ The right of an individual person, claiming the privilege of voting, may involve an inquiry into the fact of citizenship, sex, age, domicil within the Commonwealth, domicil within the town or district, the payment of taxes, exemption by law from the payment of taxes, and the fact of his being a pauper, or under guardianship, or otherwise.”
¶24The requirement of personal presence is also necessary to prevent the placing of names upon the list without the knowledge or consent of the person registered.
¶25It was claimed at the hearings, and was in evidence, that part, at least, of those so registered would have personally appeared had not the registrars construed the law as not requiring personal appearance in all cases. But the old rule of almost universal application must apply. Ignorance of the law excuses no one. The mistake of a board of registrars cannot affect the construction of an act of the Legislature, and cannot operate to change its intent.
¶26Your committee came'to the conclusion that the votes of all persons registered in violation of the provisions of section 21 of the statute should be rejected. The illegal registration, at the *10outside, was confined to a little over one hundred persons, of whom between eighty-five and ninety voted. At least fifty persons were wrongfully registered. No definite conclusion could be reached without the examination of over one hundred persons.
¶27In view of the nature and extent of these irregularities, permeating as they do the entire poll of Saugus, and the utter disregard of the law as to registration, it is exceedingly doubtful and uncertain what the vote of Saugus was; and after any examination, however extensive it might be, the same doubt and uncertainty would exist.
¶28The committee therefore report that it is impossible to determine, with fairness and certainty, the result of said election. Perry v. Montague, Loring & Russell’s Election Cases, 200; Splaine v. McGahey, Ib., 393.
¶29They therefore report a resolution that the seat be declared vacant, and a precept issued for a new election.
¶30of the committee dissented from the report, and submitted, as a minority, the following views : —
¶31The statement of facts as set forth in the majority report is correct, and the points at issue are whether the provisions of section 21 of chapter 298 of the Acts of the yea- 1884 are directory or mandatory in their nature, and whether the names of persons having been placed upon the registration list without the parties appearing in person before the board of registrars, and the votes of such parties having been received at the polls without question, such votes shall subsequently be held illegal. The question is not whether it was the duty or right of the registration officers to register the names of those who did not appear in person before them, nor whether it was the duty of election officers to register such votes, but is, what shall be done with the votes when once having been received ?
¶32While said section 21, when read alone and apart from the other sections of said chapter, would seem to imply that a failure *11of the applicant to appear in person before the registrars ■would be fatal, yet, when read in connection with sections 20 and 35 of said chapter, and section 9 of chapter 7 of the Public Statutes, our conclusion is that the statute is merely directory.
¶33The general rule for the construction of election statutes has been best stated by Judge Cooley as follows, viz.: —
“ Election statutes are to be tested like other statutes, but with a leaning to liberality, in view of the great public purposes which they accomplish, and, except where they specifically provide that a thing shall be done in a manner indicated and not otherwise, their provisions, designed merely for the information and guidance of the-pfficers, must be regarded as directory only, and the election will not be defeated by a failure to comply with them, provided the irregularity has not hindered any who were entitled from exercising the right of suffrage, or rendered doubtful the evidence from which the result was to be declared.” Constitutional Limitations (5th ed.), 777.
¶34The whole tendency of the decisions, particularly in Massachusetts, where there has been a failure to comply with the laws regulating the forms and proceedings governing elections, has been to regard such provisions as directory in their nature, and not mandatory. The registrars simply determine whether a voter possesses the qualifications for voting required by the Constitution ; they do not create new qualifications, and the mere failure of the registration officer to perform his duty should not render illegal the vote cast by a voter in good faith. “The committee believe that the whole law regulating the forms and proceedings at elections is merely directory, and cannot deprive a voter of rights which he holds under the Constitution.” Methuen, Cushing, S. & J., Election Cases, 433. See also Capen v. Foster, 12 Pick. 485. And while it is argued that in the case at hand there is no excuse, for the voter himself should have known it was his duty to appear in person before the board, yet the tendency of the decisions in Massachusetts, both of the courts and of the committees on elections of the Massachusetts Legislature, has been, not to rigidly adhere to the old maxim, “ignorance of the law excuses no one,” but to put a very liberal construction upon the acts of a voter, endeavoring in all' cases to ascertain and recognize his intention, and, if possible, to carry into effect his acts as he intended, although they may not have been in accordance with the technical requirements of the law. There has been a very marked illustration of this in the case of Whitaker v. Cummings, Loring & Russell’s Election Cases, 360, unanimously reported by a committee of able lawyers of the Massachusetts *12Senate in 1883, in-which all previous decisions were ably reviewed, which overrules the case of Taft v. Cole, decided in 1858, and which the minority think is clearly and distinctly parallel to the present case.
¶35The provisions of the statute (Pub. Stats., chap. 7, sect. 1) require that officers shall be voted for upon one ballot. In Whitaker v. Cummings the voter took a regular ballot of one party and erased from it all the names but that for candidate for governor, and then took a ballot of the opposing party and erased from it only the name of the candidate for governor, and then placed the two papers in an envelope and deposited it in the ballot-box. It was held that the provisions of the statutes were directory and that said ballot should be counted.
¶36There is no distinction in the line of reasoning between that and the present case. The Public Statutes distinctly set forth that officers should be voted for on one ballot, and the voter is supposed to know it, and if the rule “ ignorance of the law excuses no one ” should be adhered to, the ballot of this man should have been regarded as irregular and cast out.
¶37We believe the decision to have been a just one, and that, in the case at hand, the ignorance of the voter of the provisions of said section 21 requiring him to personally appear, coupled with the fact that the board of registrars voted not to require such person to come before them, and publicly gave notice of their decision, should not render votes cast by such voters illegal.
¶38Furthermore, it is claimed by the majority that section 9 of chapter 7 of the Public Statutes, providing “that no person shall vote at an election whose name has not been previously placed upon such list,” supplements this provision of said section 21 of chapter 298 of the Acts of the year 1884, and, when thus taken together, they constitute a mandatory requirement. We cannot agree with the views of the majority in this respect, and would again refer to the same case of Whitaker v. Cummings, where a certain voter placed his ballot in an envelope different from that required by the statute, and it was received and deposited in the ballot-box without a challenge or objection from the election officers, and it was held that such vote should be counted.
¶39Section 12 of chapter 7 of the Public Statutes says : “ No votes shall be received by the presiding officers at an election provided for in this chapter unless presented for deposit in the ballot-box by the voter in person in a sealed envelope or open and unfolded so that such officers can know that only one ballot is presented.” Section 4 of the same chapter, after providing for self-sealing envelopes, says “such envelopes shall be of uniform size and *13color, and bear the arms of the Commonwealth, and no other envelopes shall be used at the polls,”
¶40Here we have two positive and direct provisions, — no ballot shall be received unless in a sealed envelope, and the envelopes shall be of uniform size and color and bear the arms of the Commonwealth, and no other envelope shall be used.
¶41A voter used a different envelope from that required by the statute, and the committee, in deciding that the grounds presented for rejecting the vote are not tenable, and that the vote should be counted, say: “It seems, therefore, to be contrary to sound reason and the spirit of our statutes, and the judicial and legislative construction of them, to hold that a ballot cast in good faith and without fraud by a legal voter who has complied with all the provisions of law which entitle him to deposit his ballot, should be rejected because it was deposited in the ballot-box in a common envelope instead of the one prescribed by the statute. Again, it was the duty of the warden to have refused the ballot and directed the voter to use the statute envelope. But no such duty was performed by that officer in this case, and to refuse to count a vote thus ignorantly deposited by a voter would open the door to gross frauds on the part of the election officers.” (Loring & Russell’s Election Cases, 363.) The cases are analogous. In Whitaker v. Cummings it was the duty of the voter to know that the ballot must be cast in a particular way provided by the statute, as here it was the duty of the party to know that he should appear in person before the board of registrars.
¶42In both cases there was a fault on the part of those in official station ; in both cases there was a fault on the part of the voter ; and in both cases the vote was received, and the question was, and is, what shall be done with ⅛? We believe that the decision in Whitaker v. Cummings was wise and proper, and that the reasoning was sound and applicable to the case at hand. The ballots were cast by legal voters who possessed all the qualifications required by the Constitution ; they were cast in good faith, without fraud and without objection, and there has been no question raised but that the election was conducted in a perfectly fair and unobjectionable manner. Moreover, no injustice could have been done the petitioner by this method of registration, inasmuch as it appeared in evidence that names representing both political parties were thus placed indiscriminately upon the list, and that the petitioner, or some one representing him, was present at all the meetings of the board of registrars.
¶43The point involved in the cases cited in the report of the majority of the committee is not the same as that in the case at hand. *14The question, here is, what is the effect of a vote once received and counted, having been placed upon the register by the proper officers, although irregularly, as alleged? In each one of the cases cited, however, the votes were held illegal because the names of the parties casting the same did not appear upon the list at all, and notably so in the Michigan and Wisconsin cases. Of the Massachusetts cases cited, in Whitaker v. Cummings it appeared that the vote of one Graham, whose name had previously appeared on the list and had before the election subsequently been erased, was received by the election officer and counted. At the same time Graham was not a resident of the ward in which he voted and had no right to vote there, and the decision of the committee that his vote ought not to have been counted was just and reasonable. In the case of Capen v. Foster, 12 Pick. 485, which was a suit brought against the election officers by one whose vote had been refused because his name was not on the list of qualified voters, it was decided that the voter had no cause of action, but it was not decided that if his- name had been placed upon the list irregularly that his vote should not be counted, and that is the question at issue in this case.
¶44It is to be noted that in this case (Capen v. Foster), which has been so frequently cited in the report of the majority, Chief Justice Shaw said: “ The Constitution simply gives the right of elective franchise and prescribes the qualifications of the voters, but leaves the mode and manner of exercising the right open to regulation by the Legislature,” and the head-note of said case is as follows, viz.: “The provision in statute 1821, chapter 110, and statute 1822, chapter 104 (subsequently incorporated in section 9 of chapter 7), requiring that, previous to an election, the qualifications of voters shall be proved and .their names be placed on an alphabetical list or register, is not to be regarded as prescribing a qualification in addition to those which, by the Constitution, entitle a citizen to vote, but only as a reasonable regulation of the mode of exercising the right of voting which was competent to the Legislature to make.”
¶45While, in all the cases cited, the names of the voters did not appear upon the list of voters, yet, in the case at hand, the names of all the voters were placed upon the list by the board of registrars and were open to inspection and criticism for nearly a week previous to election, and there must of necessity be a different construction placed upon a vote cast by a party whose name was placed upon the registration list by the proper officials than upon that cast by a party whose name has never been upon the list.
¶46But, assuming for the sake of argument that these votes so cast were illegal, it does not seem to the minority of this committee that sufficient evidence has been presented to warrant the conclusions arrived at by the majority, to the effect that the seat should be declared vacant.
¶47The rule of law that “ the burden of proof rests upon the plaintiff” holds with especial emphasis in contested election cases. McCrary on Elections, § 306.
¶48“An election return cannot be set aside, or the declared result of an election avoided, unless it be proved that illegal votes have been cast against the sitting member, and would have changed the declared result.” Barr et als., petitioners, Loring & Russell’s Election Cases, 254.
¶49Upon the most liberal construction of the evidence presented in favor of the petitioner and against the sitting member, the sitting member would still have a majority of one vote, and your minority feel that, in any event, the seat should not be declared vacant, even upon the construction given to the statute by the majority, unless it be found, after an examination of every voter whose name was thus placed upon the list, that a sufficient number of such votes were cast which, being deducted from the total result as announced, would leave the petitioner a majority of votes. It is not sufficient to show that illegal votes were cast, but it must be shown clearly and positively that a sufficient number of illegal votes were cast to change the result.
¶50We, as a minority of the committee, therefore recommend that the petitioner have leave to withdraw.