The committee on elections, to whom the petition of Thomas Smith and others, against the election of Ephraim Taylor, returned a member from Chatham, was referred, reported thereon as follows ; —
“ On the first day of election, after several votes had been received, two clergymen deposited their ballots, their names being on the check list; but they were challenged on the spot, and admitted that they had never been taxed ; a discussion ensued as to what was to be done, illegal votes having been admitted, and the chairman of the selectmen removed all the votes which had been given in, and called upon the voters to bring in their ballots anew.
At this ballot no choice was effected. When this was known a motion was made to adjourn to the next day : but the chairman declined putting it then to the meeting, as the votes for *424governor, &e., were not yet scaled up. The warrant for the meeting contained an item of town business. The voters therefore proceeded to choose a moderator and transact the town business; after the conclusion of which, the member, Mr. Taylor, declares that the motion for an adjournment was put and carried. The petitioners, in their memorial, declare that it was not put. Neither party offered any testimony. The certificate of the sitting member, with the signature of the selectmen, bears date the 9th. On the 9th, Mr. Taylor was elected at the first ballot,
Mr. Taylor, the sitting member, was chairman of the selectmen, but was not a candidate the first day. On the first day one hundred and forty-four voters answered to their names; on the second day one hundred and seventy-one citizens voted; and Mr. Taylor then had one hundred and nine votes.
The committee are aware that the emptying of the ballot-box was an irregularity; and some citizens might have voted and gone home. In fact, the petitioners alleged ihat such was the case, but offered no proof of the fact; still the committee see plainly, that the selectmen had discovered that illegal votes had been thrown, and being anxious to avoid future embarrassments, adopted a course not objected to at the time, and which was undoubtedly based upon honest and conscientious motives.
As there was no proof offered that any voter had voted and retired; as there was no choice among three candidates, upon the other trial on the same day; and as a new candidate was set up and elected the next day, when there were twenty-seven more voters present; the committee believe that the will of the majority of the town is fairly, legally and constitutionally represented by the sitting member, and therefore recommend that the petitioners have leave to withdraw their petition.”
This report was recommitted to the committee on elections,1 who made a second report, as follows: —
“ On the 8th of November, the voters assembled and began voting about two o’clock, Ephraim Taylor, as chairman of *425the selectmen, commenced calling the voting list. When he had finished the list, he announced that any legal voter might now come forward and vote. Upon this, many came forward and voted. After they ceased to present themselves, the chairman announced that, by request, he had added the names of the four clergymen of the town, and called their names. Two of the clergymen came forward and voted. Neither of them was a legal voter, and their votes were challenged on the spot. Much discussion arose, and the chairman maintained, that a clergyman could vote without the constitutional qualifications, until the Revised Statutes were produced and the constitution read. He then pronounced all they had done wrong, and immediately overturned the hats, and called upon the voters to bring in their ballots again. They began calling the list of voters again, and the polls were kept open this second time about sixty-five minutes, that is, until near sunset. All the names were again called over, and, at the close', all were invited to come forward and vote. It was proved that ten persons, who voted before the hats were overturned, did not vote the second time. On counting the votes, it was found that there was no choice; the votes stood as follows: — T. H, had sixty-two votes; J, S. had fifty-four votes; S. T. had twenty-eight votes. Thus far, all the testimony agreed. But here one class of witnesses testified, that the chairman stated that he had a right to adjourn the meeting without putting it to vote; and, after consulting the other selectmen, as to the hour to which they should adjourn, he, without any motion made by any one, declared the meeting adjourned to the next day at one. Another class of witnesses were as confident, that they heard a motion made to adjourn till the morrow; that the chairman of the selectmen replied, that as the votes for governor, &e., were not yet sealed up, they could not adjourn; if they did, their whole election would be vitiated, and that, as there was an item of town’s business in the warrant, they must choose a moderator and proceed with that business.
All the witnesses agreed, that a moderator was then chosen, and the town business transacted; that their town-meeting *426under the moderator never was adjourned, and, after the business was completed, the people dropped off, leaving only the two selectmen and town clerk at the table, one other selectman and Captain Howes in the room, and a boy or two. The town clerk and the other selectman, Mr. Doane, both testified that, as Mr. Taylor, the chairman, finished signing his name to the return of governors votes, he threw down his pen, saying, what shall we do about the motion to adjourn ? that they both held up their bands as voting to adjourn, and that the chairman declared it to be a vote.
On the other hand, Mr. Nickerson, who was the other selectman, and Mr. Howes, who was the opposing candidate to Taylor the next day, both were in the hall at that time, and both testified, that they knew nothing of any such adjournment. Many testified that they did not know of any adjournment except by the chairman of the selectmen, before the choosing of the moderator, but all these testified that they left the hall before the lights were brought in; whereas the selectmen signed and sealed up their votes by candle light.
On the next day the voters assembled, and dropping two of the candidates, a new one was run, being the chairman of the selectmen, who was not a candidate the first day. The votes were, whole number, 171; Ephraim Taylor had 109; Thomas Howes, 55; scattering, 7. The town record of the 8th contained an entry thq.t the meeting was adjourned to the ninth.
Upon the above statement of facts and evidence, the petitioners contended
First. That the hats containing the votes were illegally overturned and scattered.
Second. That if they were not illegally overturned, the next bringing in of the votes was the first balloting; and that the polls on that occasion were not kept open for two hours.
Third. That there was no legal adjournment of the town-meeting from the 8th to the 9th, and that, therefore, all proceedings on the 9th were null and void.
On the other hand, the counsel for the sitting member con*427tended, that although there was irregularity in the proceedings on the first day, there was no fraud; and that in fact the irregularity was to avoid illegality, arid was the bona fide act of the chairman, to avoid receiving illegal votes. He further contended, that the meeting was legally adjourned, and that the evidence of the record was on that point conclusive.
The committee were of opinion, that, at the first balloting, illegal votes having been thrown in, the selectmen who overturned the box did it with the best motives, and not with any fraudulent intent. At the second balloting, there was no choice, but the polls were kept open to sunset, as long as the law allowed.
The committee were fully satisfied, that the record of the adjournment was conclusive upon that point; but, if it were not, they were satisfied that there was an adjournment in form, after the mass of the people had left the hall.
As twenty-seven more persons voted on the 9th than on the 8th, and as Mr. Taylor had a large and decided majority, the committee are of opinion, that the will of the town is fully represented in the sitting member, and therefore recommend, that the petitioners have leave to withdraw their petition.”
This report was agreed to.1
64 J. H. 76, 92.
64 J. H. 239, 240, 256.