1843.

COMMITTEE ON ELECTIONS.

Messrs. John C. Park, of Boston, James Russell, of West Cambridge, Samuel H. Walley, Jr., of Roxbury, Seth J. Thomas, of Charlestown, Ensign H. Kellogg, of Pittsfield, Lewis Williams, of Easton, Alexander Ingham, of Middlefield.

On the 17th of February, the committee on elections, at the request of their chairman, were discharged from the further consideration of the elections in Bolton, Easthampton, Northborough, Lanesborough, Hawley, and Spencer, and the same were then referred to

Messrs. George Wheatland, of Salem, William Sawyer, of Charlestown, Samuel Greele, of Boston, Gamaliel Church, of Westport, Dexter Fay, of Southborough, Stephen L. White, of Taunton, Stephen Bates, of Charlemont.

CASE OF THOMAS NASH, JR.

A person, who is not returned as a member, has no right to take a seat and act as such, even though he is duly elected, and ought to have been returned.

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.

On the assembling of the house, at the commencement of the session, in January, 1843, and before the organization, two persons, Thomas Nash, Jr., and Justus White, appeared and drew seats as members, each of them claiming to be elected and entitled to a seat, as the representative from the town of Whately, in the county of Franklin. Neither of them had

any certificate of his election from the selectmen, as required by law; but each of them had in his possession a copy of the record of the meeting, at which the inhabitants of Whately ballotted for representative, and was prepared with affidavits and other evidence to support his claim to a seat. Mr. Nash took and subscribed the oaths of office with the other members, and proceeded to act and vote as such. Mr. White was not qualified, and did not assume to act.

After three ineffectual ballotings for speaker, in which Mr. Nash was supposed to have voted, it was moved and seconded to adopt the following order1:

"Ordered, That Thomas Nash, Jr., claiming a seat in this house as a representative from the town of Whately, be requested to state, whether he voted in the election of speaker, at the last ballot."

It being moved and seconded,2 that this order lie upon the table, the question was taken on the motion, and it appeared, by the returns of monitors temporarily appointed for the purpose, that there were one hundred and seventy-three votes in the affirmative, including the vote of Mr. Nash, and one hundred and seventy-two in the negative. Before declaring the vote, it was moved and seconded, that the vote of Mr. Nash be disallowed. This motion was debated at great length, and the question thereon being taken by yeas and nays, was decided in the affirmative, by one hundred and seventy-seven yeas to one hundred and seventy-five nays.5

The vote was then declared in the negative, and the order was allowed to be withdrawn.6

It was thereupon moved and seconded, to adopt an order, declaring that neither of the claimants was entitled to a seat,

2 Same, 6.

3 Same, 7.

4 Same, 8.

1 65 J. H. 5. Same, 10. On this question, Mr. Nash, whose name was borne on a list of the qualified members prepared for the purpose by the secretary of the commonwealth, was called and voted in the negative. This was contrary to the rule of parliament, universally acknowledged, that even a member duly returned shall not vote on a question which concerns him personally, but shall withdraw from his seat, and from the house, when the question is stated. No one, however, objected to the vote of Mr. Nash; and the clerk presiding did not feel authorized to omit calling his name, unless by order of the house.

€ 65 J. H. 11.

and prohibiting both from exercising the functions of members, until their claims could be investigated.

This order was so modified as to relate, separately, to each of the persons named in it, and adopted first as to Mr. White,1 without a division, in the following terms:

"Whereas, Justus White is here present, claiming to be a member of this house from the town of Whately, in the county of Franklin, but without the certificate of his election required by law; therefore,

Ordered, That the said White is not entitled to a seat in this house, and that he be prohibited from any of the rights of members therein, until his claim can be investigated by a committee and decided by the house, in the manner heretofore invariably practised in similar cases."

The question was then proposed on the adoption of the order, in the same terms, relating to Mr. Nash, and decided in the affirmative, by one hundred and seventy-seven yeas to one hundred and seventy-four nays.2 On this occasion, when Mr. Nash's name was called, he did not answer. The house proceeded, on the next day, and completed their organization, by the choice of a speaker.

On the 12th of January, Mr. Nash petitioned the house, representing that, at a meeting of the citizens of Whately, held on the 14th of November preceding, he was duly elected a representative therefrom in the general court; that the selectmen had refused him a certificate of his election, for want of which the house had refused him a seat; and praying the house to inquire into the matter, and if the fact of his election should appear, to allow him to take his seat as a member.

This petition was referred to the committee on elections, who reported thereon as follows:

"The committee commenced their investigation of the testimony in this case by observing, that, there being no certificate of election from Whately, in the hands of any person, the prima facie case is, that no person has been elected a representative from that town, and the full burden of proof to make 3 Same, 32. ♦ Same, 299.

1 65 J. H. 12.

* Same, 13.

out a case beyond reasonable doubt, is upon any one assuming to claim the seat.

The first evidence, which the committee found in the case, was the record of the town-meeting on the fourteenth of November, which goes directly to confirm the truth of the above prima facie case.

The record showed, that Thomas Nash, Jr. had 118 votes; Justus White, 117; Charles Williams, 1; Horace W. Taft, 1; and that it was declared 'no choice,' and that thereupon it was voted not to send.

The committee have, in all their investigations, endeavored to uphold the high and responsible office of selectmen, as it has existed in this commonwealth, and did exist before the constitution. The duty of a clerk is simply to record the acts and doings of the town, as declared by the selectmen.

Still the committee are of opinion, that if any fact is recorded in the town clerk's record, which is declared by any claimant to be untrue, it is lawful for that claimant to introduce evidence to show that his allegation is true.

In pursuance of this ruling, the claimant was permitted to introduce testimony to show facts which would contradict the record. Testimony was therefore introduced tending to show, that persons not entitled to vote voted at that election, and that some who were legal voters were refused a right to vote.

Testimony was further introduced tending to show, that the two scattering votes were thrown for persons not eligible, and that the same ought not to have been counted as ballots.

The committee submit to the house the evidence relative to illegal voting, and merely add their own conclusion, that they see no reason to reject any of the votes which were received. Neither do they find any reason, why the rejected vote was not properly refused; and as to all but one of these votes, the committee were unanimous. Upon that one, which was the vote of Abner Field, the house is respectfully referred to his own testimony. [See the counter report.]

In reference to the scattering votes, the committee observed, that if either of them had been counted, it would have pro

duced the same result, viz., no choice. The claimant therefore assumed the burden of proof, to show that the vote for Horace W. Taft, and the vote for Charles Williams, were each and both of them for persons not eligible, and therefore ought not to have been counted.

There is positive testimony, that the vote for Taft, was thrown by a person who intended to vote for Justus White as representative, and who afterwards claimed a right to vote for White, and was refused. The committee saw plainly that the vote for Taft was a ballot under the statute, so far that it exhibits the wish of a voter adverse to the claimant, Mr. Nash.

The committee found contradictory testimony relative to the vote for Williams; whether it had or had not on it any writing tending to show that it was for a person ineligible,—and as a doubt remains in the minds of the committee, they are of opinion, that the claimant has not made out his case in this point, the burden of proof being upon him.

Although the committee reject the vote given for Taft, on the ground, that Mr. Wells testifies, that he deposited that vote for 'register of deeds,' and that he subsequently claimed to vote for representative, and was refused, as his name had been checked, when he deposited the ballot for Taft in the representative box; yet they are of the opinion, that the selectmen were bound to count the votes for Taft and Williams, in ascertaining the whole number of ballots; unless they had decided to allow Mr. Wells to rectify his mistake and vote for representative, in which case they should have rejected the vote cast for Taft.

The statute in relation to this matter is so clear, that it cannot be mistaken, and as the present case is one in which the committee are called upon to set aside the record, upon the ground that the doings of the selectmen were incorrect,-it becomes the duty of the committee and the house to refer to the law, Rev. Stat. c. 4, § 13, which is as follows:

'In order to determine the result of any election in this commonwealth, the whole number of persons, who voted at