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https://www.courtlistener.com/api/rest/v3/opinions/8502487/ | James Morrell being returned a member from the town of Falmouth, in the county of Cumberland, and having taken his seat in the house, his right to hold the same was controverted by Moses Morrell and others, on the ground, that he had been convicted of larceny.1
The committee on elections made the following report in this case, which was agreed to,2 namely: — -
The committee on elections, to whom was referred the petition of Moses Morrell and others, praying the attention of the house of representatives to the case of James Morrell, Esq., one of its members, beg leave to report, that,
The . only charge preferred against the said James Morrell, which the committee thought required investigation, was that of larceny, of which, the petitioners state, that the said Jam.es had been convicted. The evidence on this charge resulted principally from the transcript of the record of the circuit court of common pleas for the county of Cumberland, from which it appears, that the said James Morrell was indicted at said court in March, 1814, for stealing a town order from one Jabez Jones, *204on which was due the sum of $15.12; that lie was there tried and found guilty by the jury, but the verdict was set aside for irregular conduct in the jury after they had withdrawn from court and before they had returned their verdict; a new trial was of course granted to said Morrell, and the cause was continued to the next term of said court, when the indictment was quashed for want of due form,1 These facts could not substantiate the charge of larceny against the said James, since the verdict had become a nullity and upon a new trial he might be acquitted; but to obviate the inferences unfavorable to the character of said James, which might be drawn from the facts as they appear of record only, the committee think it proper to state, that from further inquiry on this subject, it appeared, that the only material witness on the trial was the said Jones, from whom the said Morrell had got possession of the town order at a meeting with him for the purpose of adjusting some demands which the said Morrell had against him; and about which there was some disagreement at the time of the meeting; what testimony the said Jones gave at the trial before the jury, does not appear; but after the indictment was quashed, the said James Morrell was brought before Woodbury Storer, Esq., of Portland, upon a complaint for the same offence, and the said Jones there appeared to substantiate, the charge; but the magistrate, upon a full understanding of the facts, was satisfied that they did not support the complaint, and dismissed the said Morrell. Soon afterwards a complaint was preferred to the grand jury against the said Morrell, and the said Jones appeared before them and was examined, but the jury did not find a bill. One of the grand jury, who was also present at the examination before Wood-bury Storer, Esq., appeared before the committee, and from bis statement of the evidence given by said Jones in his hearing, the committee are all impressed with the belief, that the conviction abovementioned must have taken place through some mistake or misrepresentation, and that no imputation *205can justly rest upon the said Morrell, of the offence charged against him by the petitioners.
■The committee therefore report, that it is inexpedient for the house of representatives to take any further order on the subject of said petition.”1
37 J.H. 7.
Same, 101.
The words, “ a true bill/’ were wanting over the signature of the foreman of the grand jury.
The rule in England, with relation to disqualification by reason of crime, is thus stated:—
“ A person, attainted of treason or felony, being dead in law, is disqualified; but an indictment for felony causes no disqualification until conviction; and even after conviction, a new writ will not be issued, where a writ of error is pending, until the judgment has been affirmed." May, L. and P. of Parliament, (2d Ed.) 35. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502489/ | The election of William W. Parrott, returned a member from the town of Glocuester, was controverted by John Tucker and others, on the ground of improper conduct, on the part of the selectmen, who presided at the meeting, at which said Parrott was chosen, in prematurely closing the poll without due notice.2
The facts in the case are set forth in the following report3 of the committee on elections, which was made thereon at the November session *.—
“ A meeting of the inhabitants of Gloucester was legally holden, for the choice of representatives, at the meeting-house of the harbor parish, so called, on the sixth day of May last, and was opened agreeably to the warrant, at nine of the clock in the forenoon. As soon as the meeting was opened, a, motion was regularly made, put, and carried, that the town should send but one representative to the general court. The *208poll was then opened, and the balloting begun. In the course of the forenoon, between the hours of 10 and 12 o’clock, Mr. John Tucker, Mr. James Odell, Mr. Nash, Mr. Smith, and many others, severally, and at different times, made inquiry of the selectmen, when the poll was to close, to which the selectmen answered always, ‘ there is no time set,’ ‘ we have not yet determined,’ ‘ there is time enough yet,’ or by some expression to that effect: nor did they give the least intimation, when answering these inquiries, that the poll would close at an earlier hour than usual, ■which was 4 o’clock P. M. At about 12 o’clock, Capt, Israel Trask, one of the selectmen, and Mr. John Rogers, the town clerk, began to count the votes, which had then been given in, the counting of which occupied about twenty-five minutes. There is, however, some contradiction of testimony as to the time when the counting commenced, two of the selectmen testifying that it began at about half past 11 o’clock, and was finished at about 12, while a great many witnesses, equally respectable and less interested, testified that it began about 12, and closed about twenty-five minutes past 12 ; and this the committee believe to have been the fact. As soon as these votes were counted, the town clerk handed a paper to Mr. William Pierce, one of the selectmen, on which was set down the result, namely: — 264 for W. W. Parrott, 205 for Benj. K. Hough.’ This was immediately communicated to Capt. Samuel Calder, chairman of the selectmen, who thereupon instantly declared, that the poll would close at half-past 12 o’clock. This was the first public notice of the time when the poll would close, and to a great proportion of the people, the first intimation or knowledge, that it would close at an earlier hour than usual. This declaration was heard with surprise, and excited much indignation, and being reported out of the house, a great many people returned with a view to induce the selectmen to extend the time; it was stated to them that this was a surprise upon the voters, who had calculated upon the usual time of closing the poll, as no notice had been given to the contrary, and that many were on their way from Sandy Bay, and other distant parts of *209the town, who could not possibly arrive before the close of the poll, unless the time was enlarged, and Major Norwood informed the selectmen, that tie had passed thirteen or fourteen persons on foot at a distance, coming to vote, who could not otherwise get up in season to vote. Mr. Nash made a motion which was seconded, that it was inexpedient to close the poll till 4 o’clock, and requested the selectmen to put the motion, which they refused to do. Great heat and agitation continued, until the poll finally closed at about a quarter past 1 o’clock; but no violence was attempted or threatened, nor was the balloting interrupted. The final result of the balloting was 289 for the sitting member, 261 for Benjamin K. Hough, and one for a Mr. Huston, in the whole 551 votes, giving to Mr. Parrott, an excess of 27 over all the other votes. From this it appears also that eighty-two votes were given in, from the time the counting first began, about 12, till the poll was closed at a quarter past one. It appeared in evidence, that many persons lost their votes from want of notice, and the committee believe that more than twenty-seven additional votes would have been cast, had seasonable notice been given. The selectmen, upon being questioned by the committee, why they had not given earlier notice of the time of closing the poll, in answer, alleged that they were influenced to withhold the notice or declaration, because at the April meeting preceding, they had experienced much difficulty, and some disturbance had arisen, when the time arrived, by many insisting that the poll should not then be closed, and that votes should be received after the time fixed; but as it cannot be supposed, nor was it pretended by the selectmen, but that some notice should be given, previous to closing the poll, the committee could not perceive, how this could have been their motive for the delay ; as it must have been obvious to them, that to withhold such notice, when they had determined to anticipate the usual time by three hours, was in fact to furnish a cause, and even an apology for disturbance and clamor; much Jess do the committee perceive, how the selectmen could have been influenced by that *210reason, to withhold all public notice whatever, that the poll would close in the forepart of the day.
The committee also further report, that the town of Gloucester contains six parishes, and between 900 and 1000 qualified voters for representatives; that the harbor parish, in which the meeting was held, contains about one half the population of the town; that three or four of the parishes are from four to six miles distant from the place of meeting; that for ten years previous to the present election, the time for closing the poll, in the choice of representatives, had been announced, either by N. B. upon the warrant, or by posting up a notification on the morning of the election day, in some conspicuous situation at the place of meeting; that, for the eight preceding years,'the meetings had opened at 10 o’clock, and the poll had always been kept open till 4 o’clock, P. M.; that no one of the present board of selectmen had been for some years previous a selectman of said town, but they were well acquainted with the relative local situation of the different parts, and well knew the times usually allowed for voting at former meetings; that, for some days before this election, they had come, to the determination to open the meeting at 9 o’clock, and close the poll in the forenoon, or before the usual hour of dinner; and it was stated, that they had made some arrangements in their lists of voters, (though what they were, did not very clearly appear,) which would much facilitate the business of the day. It appeared further in evidence to the committee, that all the individuals, composing the board of selectmen, were friendly to the choice of Mr. William W. Parrott, the sitting member, and politically hostile to the success of Mr. Benjamin K. Hough, the opposing candidate, and that it was generally understood, that the election then approaching would be warmly contested.
The committee further report, that six days previous to the day of election, and after the selectmen had come to the determination to open the meeting at 9 o’clock, and to close the pol in the forepart of the day, Capt. Samuel Calder, chairman of the selectmen, signed sundry circular letters as ‘ chairman *211of the committee of elections,5 which were sent into different parts of the town, and directed to persons who were supposed to be friendly to the election of Mr. Parrott, and who might have an influence in getting his friends to the polls, setting forth the propriety of choosing but one representative, recommending Mr. Parrott as worthy of their confidence and their suffrages, and urging upon them the necessity that every « republican5 should attend as soon as the meeting was opened, alleging as a reason, that the first business would be to decide on the number of representatives the town should elect. It also appeared in evidence to the committee, that at a caucus or meeting of the friends of Mr. Parrott, assembled to devise measures to promote his success, Mr. Peirce, one of the selectmen, made known the intention of the selectmen to close the poll in the forepart of the day, and indeed it seemed to be admitted before the committee, that it was well understood by many, if not most of the active and zealous friends and supporters of Mr. Parrott, that the poll would close at least as early as one o’clock; and on the part of the sitting member, it was contended that this was no secret to any one, and that the knowledge of this, as well as of the circular letter, was equally general among his opponents or the political friends of Mr. Hough; but there was no evidence whatever to satisfy the committee, in any degree, that any one of the political opponents of Mr. Parrott had ever read the letter before the election ; the most that appeared being, that one of them heard it or part of it read ; nor that any one of them had any knowledge whatever, that the poll would close at an earlier hour than usual, until the determination to close it was announced at the meeting, in the manner above stated; and the committee believe, that it was the intention of the selectmen not to communicate their determination to close the poll in the forenoon, to the friends of Mr. Hough, or to the public generally, but in the manner above stated.
In the opinion of the committee, there can be no doubt, that, at all elections, the voters are entitled to reasonable, notice of the time when the poll is to close, which notice may be either *212actual, by publishing the same in season, or implied, where there is no essential departure from established usage; and taking into consideration the remote situation of many parts of the town of Gloucester from the place of meeting; the practice for many years before, to keep the polls open till 4 o’clock, P. M., at the same time, that public notice was always given, at least as early as the opening of the meeting, when the poll would close; the determination of the selectmen, at this election, to anticipate the usual time, by at least three hours ; and that the only public notice they gave was less than one hour before the poll was finally closed; the committee are of opinion, that reasonable notice was not given in this instance, and that, from the circumstances of the town and the situation of the voters, it is wholly uncertain what otherwise would have been the result of the election. And the committee think proper further to state, that, from all the evidence adduced before them, they are compelled to believe, that the selectmen did refuse to give public notice at the meeting, as before stated, when the poll would close, and did communicate their intention to close it earlier than usual, to the friends of Mr. Parrott, and withhold that communication from the friends of Mr. Hough, his opponent, and from the public generally, with the view, and for the purposes, of obtaining, in that election, the unfair, and of course, illegal advantages, which must result from the knowledge of this circumstance on one side, and the ignorance of it on the other.
The committee therefore beg leave to report, and do report, that the election of William W. Parrott, as representative from the town of Gloucester, is wholly void, and that his seat in this house ought to be vacated.”
The report was agreed to by a vote 132 to 37.1
Same, 7,172.
Same, 307.
37 J. H. 131. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502490/ | The election of Nathaniel Nicholls, and Ebenezer Nicholls, members returned from the town of Malden, was controverted by Bernard Green and others, on the ground, (among others,) *214that there was no list of voters made out and published according to law, previous to the meeting at which the members returned were chosen.1
The committee on elections, at the May session, made the following report in this case :—
“ The only allegation in the petition, which was supported by evidence sufficient to claim the attention of the committee, was, that there was no list of persons, qualified to vote for representatives in the general court, made out and published according to law, previous to the meeting holden for the choice of representatives.
It appears that the assessors, previous to the first day of March last, made out a list of persons in said town, qualified to vote for governor, lieutenant governor, and senators, which list was seasonably corrected and published by the selectmen; and after the April election, namely, on the twenty-first of April, this list was taken down by the selectmen, and duly corrected, with reference to, and as a list for, the representative election in May following; but the list was not again published, but continued in the hands of the selectmen, and was carried by them to the meeting.
The committee are of opinion, that making out and publishing a list, designating the persons qualified to vote for representatives, is required by the statute, and that such a list was not in this case made out and published according to law. But (whatever penalties the assessors or selectmen may have incurred) the committee are of opinion, that it was not the intention of the legislature, in the laws enacted on this subject, to make the election void merely by the omission to make and publish the list. The omission may, doubtless, in many cases, furnish such evidence of fraud, or create such uncertainty in the result of an election, as to justify a house of representatives in declaring the same void ; but in the case before the committee, it did not appear that any thing was omitted by the assessors or selectmen of Malden, with fraudulent views, or that any uncertainty as to the choice was occasioned *215by the omission. The votes for the sitting members were double those for all the opposing candidates; and there was no evidence before the committee, that any person voted who had not a right to vote, or that any qualified voter was deprived of the oppportunity of exercising his privilege.
The committee, therefore, are unanimously of opinion, and do report, that the said Nathaniel Nicholls, and Ebenezef Nieholls, were duly elected representatives to the general court, and are entitled to hold their seats.” The report was agreed to.1
38 J. H. 13.
38 J. H. 101. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502491/ | The election of James Wolcott, Jr., returned a member from the town of Southbridge, was controverted by Edward Morris and others, on the ground of improper conduct on the part of the selectmen, who presided at the meeting, when the supposed election took place, in refusing to put a motion duly made and seconded to dissolve the meeting, after passing a vote not to send a representative.2
The committee on elections reported on this ease, at the May session, as follows :—
“ A legal town meeting was holden at Southbridge, on the first Monday of May last, at which it was duly voted not to send a representative to the general court, the present year, and the meeting was dissolved ; another town-meeting for the *216choice of representatives was holden on the thirteenth day of May last, and it was regularly moved and seconded, that the town should not send a representative the present year. The motion was put, and it being doubtful how* the vote stood on the first trial, the house was polled, or divided, and was then counted by the presiding officer, and the numbers declared to be thirty-four for choosing, and thirty-seven against choosing a representative. A motion was then made and seconded to dissolve the meeting; immediately after which, the vote for not sending a representative was disputed. The presiding officer did not put the motion which was made to dissolve the meeting, though frequently urged to do so. Considerable disorder and disturbance prevailed. After some delay, a great proportion of those who had voted against, as well as some, who had voted in favor of, sending a representative, finding the presiding officer not disposed to put the motion for dissolving the meeting, left the house. After which there was a motion put and carried, to send a representative, the motion to dissolve the meeting not having been disposed of. The votes for representative were then called for, and given in, and Mr. Samuel Fiske, having all the votes, amounting to twenty-seven, was declared chosen, but declined serving; a new vote was then called for, and Mr. James Wolcott, Jr., the sitting member, having twenty votes, being all that were given in, was declared chosen.
The committee have called on the respondent, for any evidence, to show that there was any uncertainty as to the first vote for not sending a representative, after dividing the house, but none has been furnished to the committee, although sufficient time has been allowed for that purpose, if any such evidence existed. The committee have no doubt, that the result of the voting was such as was declared by the presiding officer, and was the fair expression of the minds of the majority of the voters, who attended the meeting. It did not appear that there was any haste in putting the vote, or any surprise upon any one; but on the contrary, the vote was not taken, until the expiration of two hours from the time appointed for the *217meeting; nor did there appear any reasonable cause to question the vote, as declared after the second trial; or to delay or refuse to put the motion for a dissolution of the meeting. The committee, therefore, finding that it had been regularly and fairly voted not to sénd a representative, and that a motion to dissolve the meeting was duly made and seconded, and ought to have been put to vote, and was not, are of opinion, that the subsequent proceedings of the meeting were illegal and void, and therefore beg leave to report, and do report, that the said James Wolcott, Jr., was not duly elected a representative, and is not entitled to hold his seat.”
The report was agreed to.1
Same, 43.
38 J. H. 141. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502492/ | At the commencement of the January session, a letter was received from Asahel Stearns, member from the town of Charlestown, announcing, that, since the last session, he had accepted the office of “ University Professor of Law,” in Harvard College, and submitting for the determination of the house, whether that office is incompatible with his holding his seat as a member.
Messrs. Bartlett, of Charlestown, Thacker, of Boston, and Lincoln, Jr., of Worcester, were appointed a committee to consider the subject.2
The committee subsequently made the following report3: — .
“ The committee, to whom was referred a letter to the Hon. Timothy Bigelow, speaker of the house of representatives, from Asahel Stearns, Esq., one of the representatives of the town of Charlestown, informing him, that, since the last session of the legislature, he had accepted the office of ‘ University Professor of Law,’ in Harvard College, and submitting *218the question, whether the office was incompatible with a seat in the house of representatives, having attended to the subject, ask leave respectfully to report, that, by the statutes regulating the law school in Harvard College, which was founded in the year one thousand eight hundred and seventeen, the professor is elected by the corporation of the college, and is required to reside in the town of Cambridge, and to open and keep a school there, for the instruction of the graduates of that university, and of others prosecuting the study of the law. He is also required, in addition to prescribing to his pupils a course of study, to examine and confer with them upon the subjects of their studies, to read to them a course of lectures, and generally to act the part of a tutor to them, so as to improve their minds, and assist their acquisitions.
The students of the law school have access to the college library, and the privilege of attending the lectures of the university. They are permitted to board in commons, and are required to give bond to the college, for the payment of college dues, and the fee for tuition allowed to the professor. They are on the same footing generally, in respect to privileges, duties, and observance of all college regulations, as by the laws pertain to resident graduates. A degree of bachelor of laws has been instituted by the college, to distinguish those pupils, who, having remained at least eighteen months at the school, shall pass the residue of their noviciate in the office of some counsellor of the supreme judicial court, and thereby become entitled to practise law in the courts of the commonwealth.
By the constitution of this commonwealth, ch. vi. sec. ii., it is declared, that ‘no person holding the office of president, professor, or instructor of Harvard College, shall have a seat in the senate, or house of representatives; but their being chosen or appointed to and accepting the same, shall operate as a resignation of their seat in the senate or house of representatives, and the place so vacated shall be filled up.’ The university is not, in its corporate capacity, entitled to elect a representative to either branch of the legislature. The rights and privileges, *219however, of that ancient seminary, have ever been fostered by the government, and are dear to all lovers of religion, science, and literature. At the adoption of the constitution, all the professors and instructors of Harvard College were required to reside in Cambridge, were employed in the immediate government and instruction of the students, and could not, consistently with the performance of their official duties, attend to the business of legislation. But the framers of that instrument did not see fit to provide an exception in favor of professors, who might afterwards be elected, who might not be required to reside constantly at the college, and whose duties might not be incompatible with a seat in the legislature. The terms of the constitution on this subject are peremptory, containing no qualification nor limitation; and they operate, in the opinion of your committee, to exclude from holding a seat in either branch of the legislature, the professors and instructors of Harvard College, known and existing at the adoption of the constitution, and all others who might be elected to professorships, which might be established in subsequent periods of the commonwealth.
In conference with Mr. Stearns, he informed the committee^ ‘that the professor of law receives no salary or other emolument from the funds of the college; that he has no vote with the president, the other professors and instructors, in the government of the college, or management of its concerns; that he has no concern with or control over any of the undergraduates, or graduates, not members of the law school; that he is not required to devote his attention exclusively to the school, but, on the contrary, that he is obliged to keep an office, and to continue to be a practising counsellor of the supreme judicial court; that he is not, by law, exempt from taxation, as the president, the professors, and instructors of the college, as established at the formation of the constitution, are, and always have been.’ Mr. Steams also expressed his doubts to the committee, ‘whether, in strict propriety, the law school could be considered as a part of the college, within the meaning of the constitution; and suggested, whether it ought not *220rather to be regarded as an institution connected with the college, and, with that and the medical school, constituting the university.’
Although the professor does not receive a stated salary from the college, yet the compensation, to which he is entitled for Ms services, is collected under the authority of the college, and by force of the bond which is required from each student on his admission to the school. It is true, that the professor must keep an office, and continue to be a practising counsellor of the supreme judicial court. But these are part of his qualifications for the professorship, and if these should cease, the corporation of the college would have a right to declare the chair vacant, and to elect another to the place. The president and certain of the professors and tutors of the college are, by law, specially exempted from the payment of taxes ; but this is at the will of the legislature, and is not a constitutional right. The committee do not conceive that they are warranted, either by the constitution or the laws of the commonwealth, to make a distinction between the college and the university. The name by which this institution is recognized in the constitution and ancient laws of this commonwealth, is ‘ Harvard Collegebut in the chapter of the constitution which declares and ratifies the rights and immunities of that college, it is called the ‘ University at Cambridge.’ Known by both names, prior to the establishment both of the medical and law schools, the doubts suggested by Mr. Stearns on this point are not, in the opinion of the committee, well founded.
The law school in Harvard University, being thus established by and under the patronage of that institution; its professor being elected by and deriving his authority and duties from the same source; and the students being recognized as members thereof; the committee are of opinion, and do report, that, by the acceptance of the office of university professor of law, the seat of Asahel Stearns, Esq., in the house of representatives, became vacated; and that notice thereof be sent to the town of Charlestown, to fill up the vacancy, if the inhabitants thereof see fit so to do.”
*221The report was discussed and recommitted,1 but finally agreed to,2 by a vote of 71 to 12.
Same, 171.
Same, 252.
38 J. H. 293.
Same, 419. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502493/ | The election of Stephen Codman, Benjamin Russell, Benjamin Whitman, Charles Davis, William H. Sumner, Nathaniel Curtis, John Howe, Jonathan Loring, Benjamin Gorham, Benjamin Smith, John Cotton, Benjamin Rand, David Sears, Francis Bassett, and Enoch Silsby, members returned from the town of Boston, was controverted by John D. Howard, Jun., and others, on the ground of improper conduct on the part of the selectmen, who presided in the meeting, at which the members returned were elected.1
The committee on election!, at the January session, made the following report in this case2: — •
*222“ A meeting of the inhabitants of the town of Boston, qualified to vote for representatives to the general court, was hold-en on the fourteenth day of May last past, for the purpose of electing one or more persons to represent that town in the general court, appointed to be convened and holden at Boston, on the last Wednesday of the same month of May.
The allegation in the petition is, ‘ that at the town-meeting of the inhabitants of the town of Boston, on Thursday, the fourteenth day of May, 1818, for the choice of representatives, a motion was then made and seconded, to choose seven representatives, instead of fifteen; the motion, though urged by the citizens present, to be put, was utterly refused to be put by the selectmen, according to law; and the number of fifteen was chosen, although there was no vote taken to choose any.’
The complaint of the petitioners is founded on an opinion of the judges of the supreme judicial court, and on several decisions of this house, ‘ that it is a corporate right to fix the number of representatives to be chosen, previous to making the choice.’
The committee find, that after said meeting had been opened in the usual manner, the town clerk informed the meeting, that there had not been any list of the ratable polls, in town, returned this year; but that, by the last year’s return, the town was entitled to send forty-two ; that their number was as great this year as the last; and they had a right to choose as many as they did the last year; and thereupon, he directed the voters to bring in their votes for one or more persons.
At this time, there were between sixty and one hundred voters in the meeting.
The evidence in support of the foregoing allegation was derived from eight witnesses, who all testified, that they were present at said meeting, when it was opened; that instantly after the direction of the town clerk to bring in votes, Mr. John D. Howard, Jun., made a motion, that only seven representatives should be chosen, which motion was seconded by Mr. Ebenezer Clough. They further testified, that they saw no votes given in, before said motion was made and seconded. *223Some of the witnesses were near, and others remote from, the selectmen’s box.
The selectmen refused to put the motion, one of them saying, that it had not been usual to take a question of that kind.
Two of the witnesses were Mr. Howard, who made the motion, and Mr. Clough, who seconded H.
Mr. Howard testified, that he went to the meeting with an intention to make the motion ; and that, while the town clerk was reading the warrant, he communicated his intention to Mr. Clough, who agreed to second the motion. Mr. Howard also testified, that he made the motion, as soon as he could speak, after the town clerk had directed the voters to bring in their votes; and that he was standing, at the time, on the floor of the house, about ten feet from the selectmen’s box, at the south-west corner thereof.
The evidence against the allegation in the petition was derived from nine witnesses, four of whom were selectmen, the town clerk, one of the constables, and three of the voters. The four selectmen, the town clerk, and the constable, all testified, that they heard the motion made and seconded; two of the selectmen thought the motion was made by Mr. Clough; the other two selectmen and the constable testified, that the motion was made by Mr. Howard, One of the selectmen testified, that he was positive that there were votes in his ballot box at the time the motion was made ; he thinks there were from fifteen to twenty. One other of the selectmen testified, that he heard the motion made and seconded, and that he immediately stated, that it was not customary to take a question of that kind in the meeting; that when lie heard the motion seconded, he turned and saw votes in Mr. Lovering’s box ; he thought there were from five to ten votes in the box; he did not recollect seeing more than one box extended at the time to receive votes; he thinks there was sufficient time, after the town clerk called for votes, for fifty persons to have voted, and to have gone out to the stairs.
One other of the selectmen testified, that instantly after the direction aforesaid was given by the town clerk, the four junior *224selectmen extended their boxes to receive votes, they having their boxes in their hands while the town clerk was speaking; and that no votes were'" received, except in one box, before he heard the motion. He also testified, that in his opinion, the motion could not have been made, with propriety, sooner than it was after the meeting was opened. Two of the selectmen testified, that the reason for not putting the motion was, because there were votes given in before the motion was made, and this reason for their refusal to put it was then stated to the meeting. Two of the selectmen, and the town clerk, and the constable, were of opinion, that it was from two to three minutes, after the town clerk had called for the votes, before the motion was made.
The three other witnesses testified, that they were in the hall, at some distance from the selectmen’s box, at the time the town clerk gave the direction to bring in votes for one or more; that they approached to the north corner of the selectmen’s box, and put their votes into Mr. Lovering’s box, and retired from the hall; but did not hear the motion. One of them stated, that if the motion had been made in half a minute after he voted, he could not have heard it, as he was out of the hall. Another stated, that he did not hear it, although he staid in the hall a minute after he had voted.
It was satisfactorily proved to the committee, that there were no votes in any of the ballot boxes, excepting the one held by Mr. Lovering, until after the selectmen had decided and stated that the motion aforesaid could not be put; and that the course pursued by the selectmen, in receiving votes at this meeting, was the same as has been practised for many years past, and that it had been usual in said town, at such meetings, to have a motion made to fix the number of representatives, previous to making the choice. The committee were also satisfied, from the evidence, that instantly after the direction aforesaid of the town clerk, there was some noise occasioned by the voters pressing to put in their votes. It further appeared, that when the motion was decided not to be put, there were no persons present at the meeting, for the *225purpose of cheeking the list of voters, as the votes were put-in. It also appeared, that the meeting was orderly, and that the whole number of votes given in for representatives was seven hundred and ninety-six, and that the sitting members had each six hundred and twelve votes.
The question to be decided on the foregoing facts is, whether it was the duty of the selectmen to submit the motion to send seven representatives, made as aforesaid, to the meeting ? If it was their duty to have done so, the election was void.
It is difficult, from the conflicting evidence in this case, to determine the precise time when the motion was made, in reference to the commencement of the voting. It is apparent, however, to the committee, that the direction of the town clerk to the voters, to bring in their votes, the presentation of the ballot boxes by the selectmen, to receive the votes, and the commencement of the voting, followed in such rapid succession as to be nearly simultaneous, so that no time intervened, in which the motion could have been made and seconded, previous to the commencement of the balloting.
As the right of determining the number of representatives is a corporate right, to be exercised previous to making the choice, it was the duty of the selectmen to have given a reasonable time for the exercise of that right. The selectmen, having, in this case, adopted the usage of the town, for many years, as their guide, instead of the decisions of the house, in regulating the meeting, did not give a reasonable time for the motion to be made and decided, previous to the commencement of the balloting.
It is, therefore, the opinion of the committee, that the motion was made in a reasonable time, and that it was the duty of the selectmen to have put the motion, so that the meeting might have determined the number to be chosen, before the choice should be made.
The committee, therefore, report, that the supposed election of representatives, for the town of Boston, is illegal and void; and that the said Stephen Codman, Benjamin Russell, Benjamin Whitman, Charles Davis, William H, Sumner, Nath*226aniel Curtis, John Howe, Jonathan Loting, Benjamin Gorham, Benjamin Smith, John Cotton, Benjamin Rand, David Sears, Francis Bassett, and Enoch Silsby, are not entitled to seats in this house*”
The report was considered, and debated at length, and agreed to on the twenty-eighth of January, by a vote of 101 yeas to 22 nays.1
It was then ordered, that the committee on the pay roll be directed to make up the pay of the members from Boston, to the day of the adoption of the report.2
39 J. H. 157.
Same, 190.
39 J. H. 239, 247, 251.
Same. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502495/ | Moses S. Peaking appeared in the house to take his seat as a member, returned from the town of Wareham, and produced the certificate of his election, by which it appeared, that he was chosen “ by the minor part of the electors present at the meeting it was thereupon ordered, that the said return be committed to the committee on elections, to consider and report on the same, before the said Fearing be permitted to take a seat in the house.2
The committee subsequently reported,:—
“ That at a town-meeting, holden in said town of Ware-ham, on the 10th day of. May now last past, it was voted by said town not to send a representative to the present general court, and that said vote hath not been reconsidered. The committee, therefore, are of the opinion that Moses S. Fearing, purporting by said return to have been on said day chosen to represent said town in the present general court, is not entitled to a seat.”
The report was agreed to.3
Same, 64.
Same, 71. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502664/ | Journal Entries: [None]
Papers in File (1836): (1) Indictment.
File No. 166. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502496/ | The election of Nathaniel Cooledge, Jr., one of the two members returned from the town of Hadley, was controverted by Levi Dickinson, Jr., and others,1 for reasons, which appear in the following report of the committee on elections:—
“ To the election of said representatives, a petition or protest has been entered :—
1st. Because, at a more full meeting, the town by a large majority, voted to send only one.
2nd. Because one representative was sufficient, all that could be legally elected, and all that a majority of the inhabitants wished, or their interest required.
3rd. Because the election of Mr. Cooledge, the second representative, was effected by a much less number than the first, and after many inhabitants had left the meeting, expecting that only one would be chosen.
4th. Because the town of Hadley did not contain polls enough to entitle it, according to the laws and constitution of this commonwealth, to more than one representative.
Accompanying this petition is a copy of the proceedings of the meeting in said town of Hadley, on the said fifth of May, by which it appears, that the inhabitants voted first, that one representative be chosen for the ensuing year; that the meeting then proceeded to ballot for a representative, but before the balloting was completed, on motion it was voted, that the first vote be reconsidered; also voted, that two representatives be chosen for the ensuing year. The balloting for a representative was then completed, and all the votes given in (both *234before and after the passing of the two last votes,) were sorted, counted, recorded, and publicly declared, as follows :— For Moses Porter, Esq., 65; Charles P. Phelps, Esq., 46; Deacon William Dickinson. 1; Moses Porter, Esq., was declared to be elected. Votes for another representative were then given in, all of which were sorted, counted, recorded, and publicly declared, as follows: — For Charles P. Phelps, Esq., 42; Hon. Samuel Porter, 4; Mr. Nathaniel Cooledge, Jr., 55; and said Cooledge was declared to be elected. No person appearing before the committee to substantiate the statements made by the petitioners, the committee have not been able to discover any thing in the proceedings of the inhabitants of the town of Hadley which can vitiate the returns, or deprive the sitting members or either of them of their seats. The only point, which it appeared necessary to have established was, whether the town contained ratable polls sufficient to entitle it to send two representatives. To this point the Hon. Samuel Porter was called, who stated that he was an assessor of said town, and assisted in making the highway tax, in April last, for the present year, and after the tax was completed he carefully counted the ratable polls, and found the number to be three hundred and ninety-seven. The fact being established that the town had a right to elect two representatives:—
The committee ask leave to report, that Moses Porter, Esq., and Mr. Nathaniel Cooledge, Jr., have been constitutionally elected representatives of the town of Hadley, for the current political year ; and are entitled to their seats.”
The report was agreed to.1
44 J. H. 9.
44 J. H. 46. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502498/ | The election of James Pratt, Jr., and Thompson Burrill, two of the members returned from the town of Lynn, was controverted by James Gardner and others, because the said Pratt and Burrill were not chosen until after the town had voted not to send but one representative, and had chosen one accordingly.1
At the January session, the committee on elections reported as follows, on this case2: —
“ On the 13th day of May, 1824, a town meeting was held in Lynn, for the choice of one or more representatives from said town to the general court. After the meeting was opened, *237a motion was made to send one representative, and one only; but before that motion was put, another motion was made to send six, which was put and decided in the negative. Other motions were then made, to send five, four, three, and two, and severally put and decided in the negative. The first motion, to send one, and one only, was then put and decided in the affirmative, by twenty-one votes in the affirmative, and nineteen in the negative, as appears by parol evidence, there being no record of the number of votes given. The voters were then called upon to bring in their votes for one representative. They were brought in and counted, and Ezra Mudge, Esq., was chosen, about eighty-five votes being given for him, and about twenty-five against him, as appears by parol evidence, no record of the numbers having been made. After the choice of one representative, a motion was made to reconsider the vote which had passed, to choose one representative, and one only, and being put, was carried in the affirmative, by about forty-five voting in the affirmative, and about twenty-nine in the negative, as appears by parol evidence, A motion was then made to choose two representatives, in addition to the one already chosen, and carried in the affirmative, (the town being entitled to that number and more.) The votes were then called for and carried in, and upon being counted, it was found that James Pratt and Thompson Burrill were chosen. The petitioners state, that the votes given for James Pratt were recorded as given for James Pratt, Junior. The facts are, that two men resided in said town, by the name of James Pratt. The person who claims the seat, is known in Lynn, by the name of James Pratt only, and is never designated as James Pratt, Junior; and the other James Pratt is a man very far advanced in life, known only as a day laborer, and ineligible to the office of representative. It is a fact, admitted by the petitioners, that the individual claiming the seat, was the one intended by the voters. The committee are unanimously of opinion, that, as no other James Pratt was eligible to the office, it would be doing violence to every sound rule of proceeding, in such eases, to presume that the electors *238voted for one whom they could not constitutionally elect, when the individual intended was constitutionally eligible, and that no substantial objection arises, on this ground, to the member holding his seat. As to the first ground of iobjection, mentioned by the petitioners, the committee are of opinion, that notwithstanding a vote was passed, to choose one, and one only, yet it was competent for the town, while the town-meeting, called for the purpose of choosing one or more representatives, was open, to reconsider the vote to choose one only, and add two more; that in so doing, they exercised only their constitutional rights, and that no good cause is shewn for vacating the seats of the said James Pratt and Thompson Bur-rill. The committee have examined several reported cases of controverted elections, but have not been able to find any precisely like the one at bar; but, upon general principles, the committee feel .warranted in the opinion above expressed, as well as from what they know to be the usage of towns, on the subject of reconsideration of votes. By a certificate of the town clerk of Lynn, the committee were informed that such was the usage of that town, when a larger number was present. The committee therefore report, that the said James Pratt and Thompson Burrill, are entitled to hold their seats.”
The report was agreed to.
45 J. H. 66, 119.
Same, 160, 165, 186, 187, 190. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502499/ | There were two returns from the town of Chester, certified and signed by two different sets of selectmen, by one of which, it appeared that Silvester Emmons was elected, and by the other, that Asa Wilcox was elected. The election of the for-rfier was controverted by Nathan Ellsworth and others, and that of the latter by Asahel Wright and others, on the ground, in both cases, that the selectmen, by whom the respective elections were certified, were not duly elected.1
*239The committee on elections reported the following statement of facts, with their opinion thereupon: — •
“ At a meeting of the inhabitants of the town of Chester, qualified to vote in town affairs, on the 1st day of March, at 9 o’clock, A. M,, (the legality of which is not questioned,) 'William Henry, the clerk of the town, opened the meeting in the usual manner, and called for the ballots for a moderator, which he received, sorted, and counted, and then declared that William Shepard was elected. Shepard signified his acceptance of the office, and called for ballots for a town clerk; and upon counting the ballots, it appeared that there was no choice. It appears that there was a motion made, (as is proved by a number of deponents, and the fact is not disputed,) to adjourn to the next day, at 9 o’clock, A. M. Thus far, there is no question but the proceedings of the town were correct and legal. The moderator put the motion of adjournment, and declared it was a vote to adjourn. The vote was doubted by more than ten persons, and the moderator said he must divide the meeting. The house was divided but not counted. At this time it was nearly dark. The moderator deposes, that he adjourned the meeting by power of the first vote, and that at the time of dividing the meeting, there was much noise and confusion. Some of the deponents state that the meeting was, or could be divided, and others that a division was not, or could not be effected. It also appears by a number of depositions, that the moderator made this declaration: ‘ by power or authority vested in me, I adjourn this meeting, until tomorrow at 9 o’clock, A. M.,’ at the time, when the inhabitants dispersed. The moderator deposes, that he requested the town clerk to record the adjournment of the meeting, and that he declined, on the ground of its illegality.
On the second day, there was a full meeting, as many being present, as on the first day. The moderator called for the ballots for a clerk, and having counted them, he declared Otis Taylor elected by a majority of one vote. Taylor was duly sworn, and officiated. It was then voted to choose three .selectmen, who should also be assessors. On counting the *240votes at the second ballot, (there being no choice on the first) it appeared, that Forbes Kyle had 143 and Isaac Whipple 142 votes. It appears that the number of names checked on the list of voters, was 282. The moderator deposes, that he declared Forbes Kyle to be elected first selectman. Henry, the town clerk, deposes, that no declaration of a choice was made by the moderator, but that he said there were more votes than voters. The moderator also deposes, that a man, whom he named, was suspected of putting in more than one vote; that he saw him put in a large vote, and that when he took away his band, a small piece of paper, say the size of a vote, adhered to it. After the declaration of the result of the second ballot for first selectman, there was much noise and confusion, and when the ballots were called for the second selectman, the confusion increased, and there was a cry of, ‘no vote,’ ‘illegal,’ &c. Before any votes were cast for second selectman, the moderator deposes, that a motion was made to adjourn to 22d March, on condition of beginning with balloting for first selectman ; that he put the motion, and declared it a vote; that it was disputed, and he ordered a division, but did not succeed. It appears there was much confusion at this time, and that the moderator said, ‘ I adjourn this meeting for two weeks,’ and that, soon after, he declared, ‘I adjourn this meeting to the 22d day of March, at 9 o’clock, A. M.that Taylor recorded that the moderator adjourned the meeting, and that on the 22d March, he added, by direction of the moderator, these words, ‘ according to vote of the town.’ It appears that the hands raised for and against the adjournment, both on the first and second days of March, were not counted. It is stated by one deponent, that the moderator said, ‘I adjourn by vote of the town.’ On the supposed illegality of the meeting, and the adjournment thereof, application was made by twelve freeholders, to the selectmen chosen in 1823, to warn a meeting of the inhabitants to assemble for the choice of town officers. Pursuant to such warrant, a part of the inhabitants assembled, as therein directed, to wit: on the 22d day of March, at 8 o’clock, A. M. William Henry, the town clerk for 1823, *241opened the meeting, by reading the warrant and the return thereof. About this time, or at 9 o’clock, William Shepard and many others with him came into the meeting. Said Shepard demanded his seat as moderator, and was refused, lie then made declaration, that the meeting was adjourned to the school-house, and soon afterwards said, to the centre school-house, to which place many voters repaired, and there elected Samuel B. Stebbins, as second selectman and assessor, and John Hamilton, third selectman and assessor, and Horace Smith, as constable, with other officers required by law to be chosen in the month of March or April, annually.
The voters who remained at the meeting-house, Mr. Henry presiding as moderator, made choice of Isaac Whipple for moderator, and ’William Henry for town clerk, and Isaac ’Whipple, James Nooney, Jr., and Charles Collins, as selectmen and assessors, (the same who were selectmen and assessors, the preceding year.) They also chose Martin Phelps, Jr., constable, and such other officers as are required by law, to be chosen in the months of March or April, annually.
Pursuant to a warrant, directed by said - Kyle, Stebbins, and Hamilton, as selectmen, to said Smith, as constable, notifying the voters qualified as the law directs to assemble and give in their votes for a representative to the general court, a part of the inhabitants of Chester assembled on the 3d day of May, and made choice of Silvester Emmons, Esq., for their representative, whose election was duly certified by Kyle, Stebbins, and Hamilton, as selectmen of said town, and who was notified by Horace Smith, as a constable of the town of Chester.
Pursuant to a warrant directed to Martin Phelps, Jr., as constable, by 'Whipple, Nooney, Jr., and Collins, as selectmen, to notify the inhabitants qualified as the law directs, to assemble and give in their votes for a representative to the general court, a part of the inhabitants of Chester aforesaid assembled on the 10th day of May, and made choice of Asa Wilcox, Esq., as their representative, whose election was duly certified by said Whipple, Nooney, Jr., and Collins, as selectmen, and who was notified by Martin Phelps, Jr., as constable for the town of Chester.
*242Upon mature consideration of the foregoing facts, the committee report:—
“ That, in their opinion, the adjournment of the meeting of the town of Chester, on the first day of March last, was illegal, inasmuch as that when the moderator had put the question of adjournment, and had declared it to lie a vote, and when such vote was ‘ scrupled or questioned by seven or more of the voters present,’ he did not £ make the vote certain by pollimr the voters,’ the meeting not having desired the vote to be decided in any other way; that an attempt to divide being unsuccessful, no attempt was made to count the voters and ascertain the will of the town.
That, at a meeting of the inhabitants of said town of Chester, duly notilied anti warned by Marlin Philips, Jr., constable o± said lown, pursuant to a warrani isr-ned by Isaac Whipple, James Nooney. Jr., and Charles Collins, as selectmen of Chester, at the request of Asa Wilcox and deven others, freeholders and inhabitants of said town, for the purpose of choosing town oilieers, the said Isaac Whipple. James Nooney, Jr., and Chillies Collins, were legally chosen selectmen ol said town ; and the said selectmen have certified, according lo law, that Asa Wilcox was duly elected, on the 10th day of May last, by the freeholders and others, inhabitants of the town of Chester, qualified voters, to represent them in the general court, to be assembled on the last Wednesday of said month. The committee are of opinion, and hereby report, that Asa Wilcox is entitled to a seat in this house.
The committee further report, that the meeting at the centre school-house, in Chester, on the 22d day of Match last, beinsr, in their opinion, illegal, Forbes Kyle, Samuel 11. Slebbins, and John Hamilton, who have made return as selectmen of said town, in the usual form, that Silvester Emmons was dulv elected, on the third day of May last, at a meeting notified and warned, in pursuance of a warrant by them issued to Horace Smith, as constable of >ukl town, were not the selectmen of said town, and that, tor the mme reason, Horace Smith was not constable of said town.
*243The committee are of opinion, and hereby report, that Sil-vester Emmons is not entitled to a seat in this house.”
This report, was made at the May session, and referred from thence to the January session,1 but does not appear to have been afterwards acted upon.
45 J. H. 42.
45 J. H. 119. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502500/ | At the commencement of the January session, a letter was received from John Shepley, member from Fitchburg, announcing, that since the adjournment, he had removed his family to Saco, in the state of Maine, where he intended to reside.1 The subject underwent considerable discussion, and it was finally determined that Ms seat was vacated by the removal.2
A motion was then made, that a precept be issued to the town of Fitchburg, to choose a representative, in the room of Mr. Shepley,3 which motion, upon discussion, was indefinitely potponed.4
46 J. H. 167.
Same, 180, 183, 184, 190.
Same, 194.
Same, 198. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502501/ | Joseph Downs, Je., returned a member from the town of Fitchburg, to supply the vacancy occasioned by the removal of Mr. Shepley from the commonwealth, (see the preceding case) appeared, was qualified and took his seat in the house:1 and the return of his election was referred to the committee on elections.2
The committee made a report, giving a statement of the facts relating to the election, and concluding with a declaration, that Mr. Downe was not entitled to a seat.3
The report was considered and debated in the house, and in committee of the whole, on five several days, and finally accepted by a vote of 53 yeas to 45 nays.4
The committee on the pay roll were then directed to make up the pay of Mr, Downe, for his travel and attendance, as a member.5
46 J. H. 270.
Same, 269.
Same, 330.
Same, 359, 365, 372, 387.
Same, 391. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502502/ | At the May session, it was
Ordered, That the committee on elections be directed to report, at the next session, whether any vacancy can be filled in the house of representatives, except such as are enumerated in the second section of the sixth chapter of the constitution;
Ordered. That said committee report, whether any member of the house of representatives can constitutionally be elected to the council board ;
Ordered, That said committee, in the name of the house require of the justices of the supreme judicial court their opinion on these subjects.1
In pursuance of these orders, the committee laid the questions proposed before the court, and at the January session, the following opinion was received2:—
“ To the honorable the house of representatives of the commonwealth of Massachusetts.
The justices of the supreme judicial court have attended to the questions, to which by a vote of the house, passed 17th June, 1826, their answer was required, and submit the following as their opinion thereon :—
The first question is, whether any vacancies cart be filled in the house of representatives, except such as are enumerated in the 2d article of the sixth chapter of the constitution ?
The second, whether any member of the house of representatives can be constitutionally elected to the council board.
We take the liberty to transpose the order of the questions, since the answer to the second involves some considerations, which are of importance in the consideration of the first.
*246And 'ac arc of opinion, that there is nothing in the constitution, which disqualifies, or renders ineligible, a member of the house to a seat in the council.
The 2J adíele of section fid, chap. 2, of the constituí ion, provides for the choice of nine counsellors, from the persons relumed for counsellors and senators, with this further provision, that ‘ in cast; 1 here shall not be found, upon the first choice, the whole number of nine persons, who will accept a seat in the council, the deficiency shall be made up, by the electors aforesaid, from among the people at large.
We think the framers of the constitution, and the people who adopted it, intended only, by this provision, to exclude the implication, that successive elections should of necessity be made from the senate ; which implication might have existed without this provision, since by the constituí ion. the members of that board are all chosen by the people, counsellors as well as senators.
Members of either branch of the legislature continue to be of the, people, for they have no distinct, privileges, but only a trust or duty to perform for the people; and therefore, when it is provided that the second choice shall be from among the people at large, we think all citizens are comprehended within that description, who are not disqualified by the constitution to hold a seat in the council; and that the real intent was to leave the choice entirely unrestricted, after an attempt should have been made to fill up the council from the señale.
Surh we believe has been the practical construction of the constitution in this particular ; for it appears, from the journals in the secretary’s office, 1hat on the very first year after it went into operation, a member of the house of representatives was elected a counsellor, and took his seat at that hoard; and that many such elections were made, between that time and the year 1823.
Cotemporaneons expositions of doubtful provisions in all instruments, and particularly in legislative enactments mid constitutional charters, are held to be. legitimate and use fid sources of construction.
*247What has been done in the beginning, and has continued to be done for a long series of years, without any question as to the rightful power or authority on which such acts have been predicated, may be presumed, by succeeding publie agents, to have been rightfully and properly done; in case no private right or public immunity is invaded.
We therefore do not hesitate to give our opinion, that a member of the house of representatives can, constitutionally, be elected to the council board.
In regard to the other question, whether any vacancies can be filled in the house of representatives, except such as are enumerated in the second article of the sixth chapter of the constitution, we answer, that what we understand to have been the practice, namely : to fill vacancies made by the election of a member of the house to a seat in the senate, or the council, may well be supported by the principles of the constitution, and by analogy to certain cases, provided for by that instrument.
It was evidently the intent of the framers of the constitution, to recognize the right of towns, whose representatives had been called by the constituted authorities to the exercise of some other public duty, inconsistent with their legislative functions, to supply their place by a new election : as will appear by the numerous cases provided for in the article of the constitution cited in the question proposed. It was probably not contemplated that seats would be vacated by a legislative election to another department of the government, and therefore that case is not provided for.
But it is to be considered that every town, having the number of polls required by the constitution, has a right to be represented in the popular branch of the legislature; and that this is a valuable and important right, of which the inhabitants ought not to be deprived without their own consent. In the case supposed, the inhabitants of the town have signified their intent and desire to avail themselves of this right, by the actual election of a member. In addition to the common interest, which they have in the general concerns of the state, in the *248management of which they are entitled to a voice, they may have important local interests, which, in their opinion, require the special care and attention of one of their own body. Now, if, by the removal of their representative into the senate or the council, they most remain unrepresented, they are virtually disfranchised for the current year; and this, by the two branches of the legislature, who, if they have not imposed a duty, have offered strong inducements to the representative of the town to forsake the place, to which he had been elected with a view to the particular interests of the town, as well as the general interests of the public.
The case may be different where the seat shall be vacated by death, resignation or removal out of the state ; for these are contingencies of which towns may be supposed to take the risk, when they make their election. Oar opinion is confined to the case of a seat vacated by the interference of the constituted authorities, who have called the representative to another sphere of public duty; and in such case, we think his place may be supplied by the town he represented, because they would otherwise be deprived of their voice in the legislative department, without their consent; and this would be contrary to one of the fundamental principles of a free representative government. We think, therefore, that what we understand to have been the settled practice of the house, in similar cases, is founded upon a just view of the principles of the constitution, and upon analogy to the cases, for which express provision has been made; it appearing from these cases, that whenever a representative has been called to the exercise of any public trust, which disqualifies him for a seat in the house, the framers of the constitution and the people thought the town, which he represented, ought not thereby to lose its voice in the legislative councils.
We ask leave further to suggest, that as every town has, originally, a right to decline being represented, subject to the power of the house to impose a fine for the neglect; so, this right would remain when called upon by a precept from the house, requiring them to make a new election; for this precept *249cannot be of greater force than the constitution, which, according to decisions heretofore made, leaves the option to the towns to be represented or not, on the condition above stated.
For the foregoing reasons, we are of opinion, that vacancies in the lionise of representatives, other than such as are enumerated in the 2d article of the 6th chapter of the constitution, being of the kind supposed in the preceding remarks, may be filled by new elections.
All which is respectfully submitted,
(Signed) ISAAC PARKER, SAMUEL PUTNAM, S. S. WILDE, MARCUS MORTON.”
The committee then reported, in accordance with this opinion :—
First, that vacancies can be filled in the house of representatives, except [and other than] such as are enumerated in the 2d section of the 6th chapter of the constitution ; as, where a member of this house is elected by the legislature a member of the senate, and called up to that board, the vacancy thereby created, in the opinion of the committee, may be filled up.
Secondly, that a member of the house of representatives can be constitutionally elected to the council board.1
The report was agreed to.2
47 J. H. 136.
Same, 178.
47 J. H. 178.
Same, 191, 198, 199. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502665/ | Journal Entries: (1) June 25, 1836: discontinued.
Papers in File (1835-36): (1) Affidavit for bail, order for bail, precipe for capias; (2) capias and return; (3) recognizance.
File No. 152. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502504/ | The election of Asa Hall, returned a member from the town of Windsor, was controverted by Elijah Turner, Jr., *251and others, for the following reasons, alleged in their petition : —
“ That, at the meeting for the election, the votes were east, without the list of voters being called ; that some persons, whose names were not on the list, voted; and, that, during the balloting, the selectmen allowed four persons, who had voted, and whose right to vote was disputed, to put their hands into the box containing the votes, and to take out such as they pleased.”
The committee on elections, to whom the petition Was referred, reported, that, from the evidence submitted to them, the said Hall appeared to be duly elected.1 [It does not appear, that any documentary evidence was laid before the committee, either to prove or disprove the allegations in the petition; and it cannot be determined from their report, whether they decided in favor of the election, because the allegations against it were not proved, or because they considered the objections groundless.]
The report was agreed to.
48 J. H. 10, 54. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502506/ | 7 The return from the town of Attleborough certified, that two of the members returned were duly elected, and, in relation to the third contained a statement of facts, upon which the selectmen of said town referred the question, whether Israel Hatch, the member thus returned, was duly elected or not, to the determination of the house.
*255The committee on elections, to whom the return was committed,1 at the May session, made the following report thereon,2 at the ensuing January session : —
“ That at a meeting legally held for the choice of representatives, in the town of Attleborough, on the 5th day of May last, it was voted to send three representatives ; that said representatives were balloted for separately; that, at the first two bal-lotings, the two members returned from said town appear to have been duly elected ; that eight several balloting» were had for the choice, of the third representative, at each and all of which the selectmen present and presiding declared, that there was no choice; and that, after these eight balloting,» had been thus completed, the meeting was duly adjourned to the 10th day of May last, when it was, in legal town-meeting, voted to reconsider the vote to send three representatives, and to send but two, and the meeting was then dissolved. At each of the aforesaid eight ballotings, the sitting member, Israel Hatch, Esq, had a plurality of the votes given in. The certificate of the selectmen, by him presented, states this fact, and concludes, conditionally, in the following words: —
‘ If the votes for David Pidge, Lydia Jones, Hannah Pidge, Mary Lathrop, and Redmond Claillin ought not to be counted, on the ground of their ineligibility to the office of representative, then was the said Israel Hatch, Esq,, elected as the third representative to represent said town as aforesaid.’ ’
The committee ascertained, that the entire rejection of the votes for Lydia Jones, Hannah Pidge, Mary Lathrop, and Redmond Claftin, would not, at any one balloting, affect the result. After a patient, investigation, protracted, at the repeated request of the sitting member, a yet further continuance was granted, to give him an opportunity to produce evidence, that he had a majority of the legal votes, at any one balloting; but the only evidence to this effect, by him produced, was the deposition of one Benjamin C. Richardson, which, in the opinion of the committee, is not entitled to credit. As to the eligibility of David Pidge, the committee *256found the evidence to be, that he had the constitutional qualifications, as to property and residence; but that he had been convicted of larceny, and had never received the executive pardon. The committee were of but one opinion, as to the conduct of those voters, who could so trifle with, the elective franchise; but, as the votes, thus given, appear to have been given by legal voters, and as it therefore appeared, that, at no one of the eight ballotings, did Israel Hatch, Esq., have a majority of all the legal voters, voting for representatives for the town of Attleborough, the committee were unanimously of opinion, that said Israel Hatch, Esq., was not duly elected a member of this house, according to the constitution and laws of this commonwealth ; and they report accordingly, that he is not returned a member of this house, to the acceptance thereof ; and that he is not entitled to his seat in the same.”
The report was recommitted,1 and on the thirteenth of February, the committee reported,2 that they had again, at three several sessions, heard the parties and examined the various proofs and allegations adduced by the sitting member, and other persons interested in bis case, and had found no reason to change their former report, which they therefore reported without amendment.
The report was placed among the orders of the day, and on the sixteenth of February was agreed to.3
A resolve, providing for the pay of Mr. Hatch, was after-wards introduced and rejected by the house.4
49 J. H. 34, 41, 80.
Same, 193.
49 J. H. 214.
Same, 279.
Same, 293.
Same, 392. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502507/ | The election of Samuel French, Jr., returned a member from the town of Berkley, was controverted by John Dean and others,1 for reasons, which are fully stated in the following report of the committee on elections: —
“ That a meeting, duly and legally warned for the choice of a representative to this legislature, was there held on the eleventh day of May last; that the whole number of votes given, in at the election was seventy-one; necessary to a choice, thirty-six ; that said French, Jr., had thirty-six votes, and was declared to be elected.
The petitioners object, that the certificate of the election of the said Samuel .French, Jr., is signed by George Sanford and Henry Crane, two only of the three selectmen ; that Crane was not present at the meeting; that French, Jr., though a selectman and present, did not sign the certificate; that the law requires, that a major part of the selectmen present at the meeting shall sign the certificate ; and that as the requisition of the law has not, in this particular, been complied with, the certificate is void.
The petitioners further allege, that the name of Robert Sanford, an inhabitant of that town, and a qualified voter for a representative, was stricken from the list of voters, immediately previous to the election, by said Samuel French, Jr., who was one of the selectmen of that town; that said Robert Sanford *258did, on the same eleventh day of May, in open town meeting, offer his vote or ballot to George Sanford, then presiding in the meeting as chairman of the selectmen, which vote was by him rejected, and that he, the said Robert Sanford, was thereby prevented from voting.
The petitioners further state, that, at the same meeting, one Stephen B. Burt having voted, the said George Sanford, chairman of the selectmen, took from the ballot box a vote or ballot, under the pretence, that it was the ballot, which the said Stephen B. Burt had deposited in the box, when from the position in which the said George Sanford stood, it was impossible that he should have seen the ballot, which the said Stephen B. Burt had deposited in the box, or the name which it bore.
And further, that if the said Robert Sanford had been permitted to vote, or if the ballot actually deposited by the said Stephen B. Burt had not been withdrawn, the election might have resulted differently.
The petitioners further represent, that the said election was conducted partially and unjustly, and in subversion of the right of suffrage.
As to the charge of partiality and misconduct, on the part of the selectmen, in conducting the meeting, the committee are of opinion, that the same is wholly unsupported by evidence.
The committee are also of opinion, that the certificate of the election of Mr. French ought to be considered by this house as sufficient. The statute relating to that subject requires, that ‘the selectmen present or a major part of them shall sign a certificate, &c., or such election shall be certified to the house of representatives to their acceptance.’ As no fraud or misconduct appears, with regard to the certificate, and &s the reason why it was not signed by the two selectmen present was, that said French, from motives of delicacy, did not think it proper to sign the certificate of his own election, the committee presume, that the certificate will be considered sufficient.
*259It was agreed, that Stephen B. Burt was not a legal voter. George Sanford, the presiding selectman at the meeting, testified, that before he had time to forbid him, said Burt precipitately threw his vote into the box, and that he immediately drew the same vote from the box. He further states, that he put the vote, thus taken out, into his pocket, and did not know, until after the meeting, for whom the vote was given. After the meeting he found the vote to be for Samuel French, Jr. Mr. Dean Burt testified, that the presiding selectman stood in such a situation, that, in his ■ opinion, he could not have known, that he took out of the box the vote put in by Stephen B, Burt. The testimony of Dean Burt being matter of opinion, and that of the presiding selectman being positive, the committee are of opinion, that the vote thus taken out of the box was the vote put in by Stephen B. Burt; and, that the presiding selectman, knowing it to be the vote put in by said Burt, not only had a right, but that it was his duty, to take it out of the box.
Much evidence was produced before the committee, relating to the rejection of the vote offered by Robert Sanford. That part of the evidence, deemed by the committee to have a bearing on the question, is, in substance, as follows:— Robert Sanford, whose vote was rejected, deposed, that he attended said meeting for the choice of representative; that after the meeting was opened, he went forward to the selectmen, and presented his vote to the chairman, who refused to receive it, giving as a reason, that his, Robert Sanford’s name, was not on the list of voters; that when he presented his vote, he claimed the right of voting, but was refused; that his name had been on the list of voters in the month of March previous; and that he had not received any notice, that the selectmen would meet to correct the list of voters. It appears in evidence, that Robert Sanford has lived in the town of Berkley for the greater part of the time during the last thirty years; that he has occupied a small estate, consisting of a dwelling house and about an acre of land, which he considered as his own, but he never had a deed of it. The annual income of said estate is estimated *260to be worth, to the said Robert Sanford, from twelve to fifteen dollars per annum, to others worth a less sum. There is no evidence before the committee, that said Sanford has been assessed or paid a tax within the last nine years. The reason why he was not taxed was, that he had three idiot children, two of them more than twenty years of age. Sanford has received assistance from the town for three or four years past, for the support of the two children who were of age in 1825. When he applied for assistance from the town, for the support of the idiot child under the age of twenty-one years, he was told by the selectmen, that if he should receive assistance for the minor child, he would not have a right to vote. On hearing this statement, he declined receiving such aid. One of the selectmen said, that he made this remark from motives of policy, hoping thereby to save some expense to the town. In 1826, however, he made a written application for assistance for himself and family, but did not receive it, except as above stated. The reason why said Robert Sanford has not been assessed was as before stated, and also that he was poor, and had not been considered by the assessors as able to pay a tax, if assessed. His name had not been on the list of voters for the last eight or nine years, until a few days previous to the last March meeting. It was then put on the list, but was struck from it, at, or soon after, the time appointed for said meeting for the choice of representative. It was struck off before the meeting was opened. If Robert Sanford had been permitted to vote, he states that he should have voted for Barzillai Crane. Robert Sanford’s name is not on the list of petitioners. The number of names on that list is twenty-two. Seven of that number have petitioned this house for leave to withdraw their names from the petition. The committee, re- , spectfully submitting this statement to the house, report, that, in their opinion, the said Samuel French, Jr., is entitled to his seat.”
The report was made at the January session,1 and when it *261came up for consideration, Mr. Eddy, of Middleborough, moved to add thereto the following as an amendment:—
“ There was no evidence, that the selectmen of said town gave any notice of any meeting, for the purpose of correcting the list of voters, except the following, to wit: — The selectmen posted up a list of voters, on the sixteenth day of February, 1829, on which was inserted the name of Robert Sanford; and that list gave notice, that ‘the selectmen would be in session, at the public meeting-house. In said town, on the second Monday of’ March then next, for the purpose of correcting the list of voters.’ At the time of striking off said Robert Sanford’s name, the same list was brought forward, and another name inserted thereon.’1
The report and the proposed amendment were then recommitted to the committee on elections.1
On the fifth of February, the committee again submitted their former report, without amendment. Mr. Eddy renewed his motion to amend, which had been referred to the committee, but the house refused to sustain the same. Mr. W. W. Blake, of Boston, moved to amend the report, by reversing the conclusion thereof. This motion was also lost, and the report was then agreed to.2
50 J. H. 50, 100, 150.
50 J. H. 232.
50 J. H. 256.
Same, 263. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502508/ | The election of Gbadiah Dickinson, returned a member from the town of Charlemont, was controverted byx Anson Mayhew and others, on the following grounds, stated in their petition : — 1. That one Enos Taylor, who had not been resident within the said town for six calendar months next preceding the election, was permitted to vote therein; and 2. *262That they had reason to believe, that an undue and improper influence had been exercised to induce Taylor and others to vote for Dickinson,
By a certificate of the town clerk of Charlemont, it appeared, that, at the election, the said Dickinson received ninety-two out of one hundred and thirty-two votes which were given in.
The committee on elections reported, that if the facts set forth in the petition were fully proved, they would have no tendency to impair the right of said Dickinson to his seat. The report was agreed to.1
50 J. H. 38, 93. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502509/ | The election of Ziba Cook, returned a member from the town of Pelham, was controverted by Edmund Miriek and twenty others, on the following grounds alleged in their petition, to wit: that the election was effected by forty-eight votes for the sitting member, against forty-seven given for other persons ; that one vote, which was for the sitting member, was received and counted, after sufficient time had been allowed for all persons to vote, and the poll had been closed, the box turned, and the selectmen were counting the ballots ; and that two persons, who had removed from Pelham, were allowed to vote in the election, and did vote for the sitting member.
The case being referred to the committee on elections, affidavits were laid before them, to prove the allegations in the petition. From one of them, it appeared that three votes, two of which were for the sitting member, were received after the poll had been closed, as alleged in the petition ; and in another it was stated, that one vote was so received and counted for *263the sitting member. But there was no direct evidence, that the two persons voting, who were, alleged not to be entitled to vote in Pelham, for want of residence, voted in the election at all; and no evidence whatever, that if they did vote, they voted for the sitting member,
The committee reported, merely, that they had attended to the subject, and the member returned was entitled to Ms seat. The report was agreed to.
[Setting aside the allegation that two illegal votes were given in, of which there seems to have been no competent evidence; and assuming that the receiving of votes after closing the poll, however irregular, would not invalidate the election, unless the votes, so received, if counted, would affect the result of the election, as declared; the inquiry would then be, whether the three votes in question would have any such effect. If one of them only was for the sitting member, and the two others for another candidate, and the whole were rejected, the former would still be elected by a majority of two votes; if two of them were for the sitting member, and one only for another candidate, the residue of the votes would be equally divided, and there would be no choice. The evidence leaving it uncertain, whether the sitting member received one only or two of these three votes, the committee were probably not satisfied, that the receiving of them would affect the result, and therefore had no alternative but to confirm the election.] | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502511/ | The election of Nathaniel Pierce, returned a member from the town of Ashburnham, was controverted by Timothy Stearns and others, for reasons which are fully stated in the following report, made thereon at the January session, by the committee on elections : — ■
“ The objections stated in said petition, against the election of the sitting member, are, that, at the meeting in said town. *265for the choice of a representative, on the third day of May last, a motion was made, and put, not to send; that the vote was sixty-seven for, a'nd seventy-three or four against sending; notwithstanding which, the chairman of the board of selectmen, by a mistaken count, and counting some twice, declared that it was a vote to send ; and that the chairman, though thereto urged, refused to make the vote certain, by calling the list of voters and checking the names of those who voted.
The committee find, by an examination of the testimony of the parties produced in the case, that, after the meeting was opened, and a few votes given for a representative, the motion not to send was made, and those who had voted withdrew their votes from the box. The motion was them put, and the vote declared in the affirmative, which being doubted, the meeting was divided, and the electors were directed by the chairman to pass in front of him ; first those in favor of the motion, and then those against it. The electors did pass as directed, and the chairman made declaration that the motion was negatived.
The committee further find, that the chairman was requested, after counting the votes for and against said motion, and declaration of the result, upon the division of the meeting before named, to call the list of voters, and check the names of those who voted, which the chairman declined doing, observing, that, as reasonable men, they ought to be satisfied; and that it is not practised in said town, so to call the list of voters, upon a division of the meeting, and has not been practised for more than twenty years.
And furthermore, that the statements of those, who testify as to the number of persons who voted for and against the motion not to send, are, for the most part, without agreement and contradictory to each other, though they testify, that they were so situated, that they were not mistaken in their count.
The committee, from their examination of the facts testified to, do not find that the selectmen, presiding in said meeting, departed from their duty, or were mistaken in their declaration of the result of the vote, on said motion; or that any of the *266electors were counted twice; and are therefore of opinion, that the said Nathaniel Pierce was duly elected, and entitled to his seat. All which is respectfully submitted.” The report was agreed to.1
51 J. H. 39, 79, 188, 193. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502956/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
The appeal in this case was withdrawn by the appellant. It appears to be without merit, so we take this occasion to set the rule on frivolous appeals.
Of all appeals filed with the Navajo Nation Supreme Court, only one quarter reach a decision on the merits. Most appeals are dismissed for failure of counsel to file the appeal within the time required by the statute or for failure to perfect the appeal. We see occasions when it appears that an appeal is filed to delay execution of a judgment or for frivolous reasons. We see appeals that lack probable cause because Navajo Nation law is clear on the points raised in the appeal and counsel could have determined that fact upon a simple review of the law. There are two issues: First, the nature of the Court’s power in dealing with frivolous appeals; and, Second, when the Court will take action.
I
Courts have inherent powers to govern their operations. “The powers inherent in court governance are the powers that courts call upon to be able to function institutionally. That is to say, courts use them to regulate and conduct their internal affairs and to prescribe rules and conditions for the oversight of those persons who are or become actors in the activities related to the judicial process. They come into being from the necessity of courts to govern themselves.” F. Stumpf, *140Inherent Powers of the Courts 15 (1994). Among the inherent powers of courts to govern their operations is the power to impose sanctions for misconduct by attorneys and parties or for abusive litigation practices. Id. 24-27. Courts have the power to assess attorney’s fees against attorneys who do not comply with discovery orders. Roadway Express Inc. v. Piper, 447 U.S. 752, 765 (1980). In Chambers v. NASCO, Inc., the U.S. Supreme Court held that it has the inherent power to “police itself’ and that a court may impose attorney’s fees and expenses on a party who engages in bad faith conduct. 501 U.S. 32, 111 S. Ct. 2123 (1991). The Court ruled that “... the inherent power extends to a full range of litigation abuses.” Id., 111 S. Ct. at 2134. Similarly, state courts use their inherent powers to punish litigation abuses. See, e.g., Winters v. City of Oklahoma City, 740 P.2d 724 (Okla. 1987); Barnard v. Wasserman, 855 P.2d 243 (Utah 1993); and Bi-Rite Package, Inc. v. Ninth Judicial District Court, 735 P.2d 709 (Wyo. 1987).
There are important public policy reasons to announce the rule that this Court will impose sanctions for litigation abuses on appeal. Courts must regulate their own conduct and the conduct of parties who appear before them. The Navajo Nation Supreme Court regulates the practice of law in the Navajo Nation and must oversee the Bar. That includes immediate and direct oversight in the appeals process. We note that some members of the Navajo Nation Bar have sloppy practice habits and do not prepare their cases well. They are the minority, given the high standards of most counsel, but sloppy practice should not be tolerated. In addition, the cost of providing the public service of judicial remedies is expensive to the Navajo Nation. If this Court expends time in processing an appeal and the appeal is not decided on the merits without good cause, the Navajo Nation must be repaid for the expense. If an appeal is without merit, the Navajo Nation must be reimbursed for the cost of time wasted. Innocent parties should be reimbursed for their reasonable costs and attorney’s fees.
This Court may compute the time justices put into the study of the appeal, staff time and expenses to determine the actual cost to the Navajo Nation and require a party, counsel or both to pay that expense. The Court may also determine the reasonable costs of innocent parties on appeal. The Court will provide the right of notice and an opportunity for hearing before assessing penalties. Kutch v. Del Mar College, 831 S.W. 2d 506 (Tex. App. 1992).
II
When is there party or attorney misconduct which will justify an assessment? There are many grounds for action, but today we address the frivolous appeal. An appeal is “frivolous” when it is not filed within the time permitted for an appeal; when the appeal is not perfected by the filing of the record or briefs; or when an appeal clearly lacks probable cause. An appeal lacks “probable cause” when simple legal research discloses that points of law for the appeal are settled under our law or when a party does not have the right to take the appeal. In this *141particular case, it was clear that a voter does not have standing to complain of a lack of a candidate’s qualifications. Fulton v. Redhouse, 6 Nav. R. 333 (1991). An appeal is “frivolous” when there is a lack of probable cause to bring it or it appears that the appeal was filed to delay the execution of judgment. It may also be frivolous by reason of attorney misconduct.
There is no right to an appeal, and to the extent appeals are allowed, they are subject to statutory restrictions and court procedures. See, Nez v. Bradley, 3 Nav. R. 125, 129 (1982). “Probable cause” for an appeal means the situation where there is “a debatable question or an honest difference of opinion” and when the briefs and record show “grounds for error ... that are open to doubt or an honest difference of opinion, and over which rational, reasonable, and honest discussion may be had.” Battese v. Battese, 3 Nav. R. 110-111 (1982). The standards for appeals to this Court are clear, and perhaps the greatest body of decisional law in the Navajo Nation is the subject of “appeal and error.”
Ill
The Court therefore announces the following rule, which shall be applied prospectively to appeals decided in the future: Where the Court finds that an appeal is brought in bad faith, frivolous or lacks probable cause, or where there is attorney misconduct, the Court may assess attorney’s fees, costs or other charges against a party, counsel or both. The assessment will be designed to reimburse the Navajo Nation and innocent parties for the time and expense caused by the appeal, and it may include monetary sanctions to punish for misconduct. The procedure will be an order to show cause why an assessment should not be imposed, with an opportunity for the party and counsel to respond. Assessments will be enforced using the Court’s inherent contempt powers.
The Court will not penalize parties or counsel for legitimate challenges to a trial court or agency decision, but it will take action where it finds bad faith, a breach of the duty of honesty to the Court, sloppy practice or a lack of probable cause for an appeal.
The appeal is hereby DISMISSED. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502958/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
This is an appeal from a September 23, 1993 decision of the Navajo Nation Labor Commission (“Commission”) which found appellant El Paso Natural Gas Company (“El Paso”) in violation of the Navajo Preference in Employment Act (“NPEA”) with respect to appellees Thomas Largo, Gary Miller and Roy Largo (“claimants”). The appeal presents essentially the same facts as those in our prior decision in Largo v. Gregory & Cook, Inc., 7 Nav. R. 111 (1995). The issues of law raised in the two appeals are different.
I
El Paso is a Delaware corporation which is authorized to do business within the Navajo Nation. In 1991, it contracted with Great Plains Pipeline Construction, Inc. and Gregory & Cook, Inc. to undertake pipeline construction for the North Region Expansion Project in the Navajo Nation. El Paso was required to comply with federal regulations for testing and certification of pipeline welders hired to perform the contracts. The testing of prospective welders was administered by El Paso’s employees.
The testing regulations establish technical standards for failure if certain welding defects are present upon a visual inspection and no additional test is required. Welders who passed were hired, and those who failed were not. El Paso effectively had control over hiring by Great Plains Construction, Inc. and Gregory & Cook, Inc. through the tests.
*148The Commission found that El Paso’s welding test exceeded federal regulatory requirements in that all welders were required to take the test regardless of current certification. If a welder fails the test, the regulations permit retesting if in the joint opinion of El Paso and the contractor, the welder failed for conditions beyond his or her control. If a welder had subsequent training, retesting was also allowed. There was no minimum requirement for the training, and it could include work experience, practice or other welding.
On November 20, 1991, Thomas Largo held a valid welding certificate from El Paso, but did not have a certificate for the North Region Expansion Project. Neither Roy Largo nor Gary Miller held a current El Paso certificate. Each claimant took the welding test on November 20, 1991 to work for Great Plains Pipeline Construction, Inc.
The El Paso tester did not give a full explanation of the welding procedure to be tested, and the claimants were not provided with either written policies or an oral summary of the specifics of the test. They were tested separately from non-Navajo applicants.
The test procedure requires the use of “line-up clamps” to avoid weld defects. The claimants were not given clamps because none were available. They also were not provided with the required “welder’s helper” which assures uniformity of temperature to avoid defects.
Each claimant was disqualified after a visual inspection of his work, and was not permitted to finish the weld. Neither radiograph nor destructive testing was used to confirm the soundness of the test welds. The three claimants were disqualified solely on the basis of visual inspection, and no objective measures were used.
Thomas Largo and Gary Miller also failed a December 20,1991 retest administered by El Paso employees. The test coupons, which are the items used for the welding test, were not kept by El Paso. The coupons of other, non-Navajo employees were kept. Largo and Miller were failed without measurements which are required by the federal regulations El Paso relies upon.
Following the results of the second test, the claimants and other Navajos complained to the Office of Navajo Labor Relations. El Paso agreed to reevaluate the welding test coupons, but they could not be found. El Paso then agreed to retesting with the use of an x-ray to assess the weld in lieu of visual inspection. The agreement set the standards for how future tests would be administered.
The claimants applied for work with Gregory & Cook in January 1992, but were denied the right to a test by El Paso’s inspector. Following another complaint to the Office of Navajo Labor Relations, El Paso again agreed to allow the claimants to retest in February 1992 in conjunction with another phase or loop of the North Region Expansion Project. In the meantime, several less experienced Navajo welders were tested in early January, 1992.
All three claimants were tested on March 18, 1992 by an independent inspector, and all passed. However, they were not hired because the available positions had been filled. The successful completion of the test, using objective standards, *149shows that if the test had been done properly in November 1991, it is more than likely that the claimants would have received their certificates and employment.
Following a hearing on September 23, 1993, the Commission ruled that El Paso’s conduct in testing violated the Navajo Preference in Employment Act, and this appeal followed,
II
The record and briefs raise these issues:
1. Whether the Navajo Nation Labor Commission erred when it found that El Paso was an “employer” within the meaning of the NPEA?
2. Whether the Commission erred in refusing to grant a motion to dismiss?
3. Whether the Commission erred in refusing to find that the federal regulations preempted the NPEA as to these claims?
4. Whether the Commission erred in making its findings of fact, in refusing to make the findings offered by El Paso, or failed to make findings that show El Paso’s causal fault?
5. Whether the Commission erred in its award of damages?
III
El Paso asserts it is not an “employer” within the meaning of the NPEA because it is not the entity which hired or fired employees. Under the Act, an “employer” includes all persons, firms, associations, corporations, the Navajo Nation and all its agencies and instrumentalities, who engage the services of any person for compensation, whether as employee, agent, or servant.” NPEA, Sec. 3(2).1 There is no question that El Paso is a “corporation” for the purposes of the definition. It did not engage the claimants’ services for compensation, because they would be paid by the contractors who hired them. Given the administration of the test by El Paso, which effectively controlled employment, was it an “employer” under the Act?
El Paso was permitted to enter the Navajo Nation through permissions granted to construct and maintain pipelines.2 It is a foreign corporation which is authorized to do business within the Navajo Nation. While Great Plains Pipeline or Gregory & Cook were to be the claimants’ actual employers, and while El Paso did not actually hire, supervise or pay the claimants, it had ultimate oversight and control over their work. By virtue of retaining control over testing, it was a gatekeeper for employment.
In Carroll v. Associated Musicians of New York, 183 F. Supp. 636, 638
*150(D.N.Y. 1960), the court construed similar provisions of the National Labor Relations Act. It concluded that the term “employer” is determined by the actual relations of the parties. Here, the retention of control over the hiring process and supervision of the work by El Paso are important factors in determining the employer-employee relationship for purposes of the NPEA. The National Labor Relations Act definition includes “any person acting as an agent of an employer, directly or indirectly.” Office Employees’ I.U. v. NLRB, 353 U.S. 313 (1957). El Paso was Gregory & Cook’s agent for the purpose of testing and determining which persons would be hired to do the construction work. Title VII of the U.S. Civil Rights Act of 1964 provides a similar definition of “employer.” Given that the definition includes “any agent of such a person,” an employer may not avoid liability by delegating discriminatory programs to third parties. George v. New Jersey Bd. of Veterinary Medical Examiners, 825 F.2d 111 (6th Cir. 1987). El Paso retained crucial control over the employment process to be deemed an “employer.” Accordingly, we affirm the Commission’s determination that El Paso was an “employer” under the NPEA.
IV
The Commission denied a motion to dismiss pursuant to section 10(D)(2) of the NPEA. It provides for dismissal of complaints where there is no probable cause to believe a violation of the Act has occurred, a charge is not timely, or if the charge has been settled. The Commission found that none of these criteria had been met. We find that the Commission did not abuse its discretion in denying the motion. The Commission’s ruling is affirmed.
V
El Paso poses the issue of federal preemption of our law by the federal testing regulations for the first time on appeal. We address the issue due to its importance.
In Arizona Public Service Co. v. Office of Navajo Labor Relations, 6 Nav. R. 246 (1990), we addressed federal preemption of our labor law under Title VII of the U.S. Civil Rights Act of 1964, and held that given the specific exemption of Indian nation governments under that Act, there was no federal preemption of our anti-discrimination labor code provisions. Also in that opinion, we noted that federal courts take the position that federal statutes of general application may be themselves preempted by virtue of our Treaty of 1868 and principles of sovereignty and self-government. Id. at 261; citing Equal Employment Opportunity Comm’n v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989) and Donovan v. Navajo Forest Products Industry, 692 F.2d 709 (10th Cir. 1982). However, we do not reach the issue of whether the federal pipeline safety regulations cited here are a law of general application to the Navajo Nation. There is no factual basis to show that in fact El Paso’s compliances with those regulations created an irreconcilable conflict with the Navajo Preference in Employment Act or El Paso’s prior agreement. The *151record shows that in fact, El Paso imposed more stringent standards than the regulations, and it failed to show how compliance with safety standards conflicted with the local law obligation to withhold discrimination against Navajos in employment. The preemption argument fails on the facts, if not on the law.
VI
The findings issues are resolved through a review of the record and we give due deference to agency findings of fact. As to the findings in Thomas Largo, Gary Miller and Roy Largo v. Gregory & Cook, 7 Nav. R. 111, the factual issue in this case is whether the tests were administered in a fair manner. The Commission found that the tests were not fair, and we find no inconsistency with the findings in the prior case.
El Paso attacks the consistency of the 67 findings of fact in this case, but we find that each is supported by the record. The burden is upon El Paso to show that the findings of fact are unrelated to the evidence introduced before the Commission and it failed to do that. There is nothing in this record to show that the Commission did not have a sufficient factual foundation to support its findings.
Parties who offer findings are sometimes disappointed when a tribunal fails to adopt them, or where it draws different inferences from the theories offered by a party. Here, the Commission’s analysis under our law is supported by the record, and we find no cause to disturb its findings.
VII
We will not disturb the Commission’s determination of damages, and we do not accept the assertion there was an overlap of damages. El Paso contends that the claimants did not want to take the January 1992 welding test. However, the Commission went back to the beginning of the testing process and affirmatively found that the November and December 1992 tests were administered unfairly. The claimants would have been employed but for the unfairness, and the Commission was justified in concluding the process was violative of the Act. It properly determined that damages were due and owing from November 20, 1991, despite any failure of the claimants to take the test in January 1992, when El Paso’s inspector denied the opportunity to test.
The Commission properly concluded that there were continuing, repeated and obviously willful violations of the Act and El Paso’s settlement agreement. The record supports the Commission’s decision, and accordingly, the September 23, 1993 decision of the Navajo Nation Labor Commission is hereby AFFIRMED.
. The 1990 Amendments to the Navajo Preference in Employment Act have not been codified in the Navajo Nation Code. Therefore, we will cite to them as they appear in the Amendments.
. Entry into the Navajo Nation is governed by Article II of the Treaty of 1868 between the United States of America and the Navajo Nation, 15 Stats. 667 (June 1, 1868), and by Navajo Nation legislation enacted in furtherance of the Treaty. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502512/ | The election of Egbert B. Garfield, returned a member from the town of Tyringham, was controverted by Bidwell Brewer and others, on the following grounds, viz : that the meeting for the choice of a representative was not legally notified; that one person was admitted to vote, who was not qualified as to residence ; and that the meeting was called at an unusual hour, and the poll prematurely closed.
The committee on elections made the following report, in this case, which was agreed to2: —
“ A meeting was holden in said town, on the third day of May last, for the choice, of a representative to the present general court. The number of votes given in at said election was one hundred and one, and Egbert B. Garfield, the member returned from said town, had fifty-six votes, and was declared elected.
The causes stated by the petitioners, against the election of the sitting member, are ; first, that the constable posted up but one notification of the meeting, and that in a remote part of the town; when by a vote of the town, passed 1805, it is made the duty of the constable, for all meetings, to post up four notifications, one at each meeting-house, and one other, in each part of the town, at the most public places, in the estimation of the constable, eight days previous to the meeting; secondly, *267that Henry Turrell was permitted by the selectmen to vote, who had not resided in said town six calendar months next preceding the election; and thirdly, that the meeting was called at an unusual hour, and the poll closed so soon, that those electors, who came at the usual hour, were deprived of the privilege of voting.
The committee find, that four notifications were put up at the places and in the manner prescribed by the vote of the town: and also that Henry Turrell did vote in said election, and for Egbert B. Garfield, the member returned from said town, and that he came to reside in said Tyringham, on the 28th of December, 1829; that the electors were notified to appear on the day above named, at twelve of the clock, M., when the meeting was opened, and adjourned for half an hour, when it was again opened, and continued open, till about three o’clock, P. ML, when the poll was closed.
The committee are of opinion, that the poll was kept open a sufficient time for the electors of said town to vote in said election; and as the illegal vote, given by the said Henry Turrell for the sitting member, did not change or prevent a majority, the election is not for that cause void; and therefore the said Egbert B. Garfield is entitled to his seat.”
Same, 146, 169, 176. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502513/ | The speaker laid before the house, on the second of June, a memorial of William B. Adams, claiming to have been duly elected a member from the town of Marblehead, and praying that the case presented by him, in the said memorial, might be taken into consideration.1
The memorial was referred to the committee on elections *268who reported thereon,1 at the January session, as follows, namely:—
“ A meting was holden in said town on the tenth day of May last, for the choice of five representatives ; the poll to be kept open until three of the clock, P. M., at which time the poll was closed. The votes were then sorted and counted, by the selectmen presiding- at said meeting, and the whole number declared to be 215; necessary for a choice, 108; and that only-two of the persons voted for, were declared elected, to wit: Joseph Green and Philip Besom. The meeting was then dissolved.
The committee find that 215 electors voted in said election, and that the sum of all the names borne on their votes, was 944; consequently, 53 of said electors voted for a less number than five representatives. The memorialist contends, that the rule, which the selectmen ought to have adopted, to ascertain the number of votes, given in at said election, was, to add together the names borne on each vote, the amount of which is 944, and that sum divided by five, the number of representatives voted for, the quotient, 188 4-5, would be the number of votes given in at said election : or, secondly, that only those votes should have been counted, which contained the full number of five names, which, by computation, could not exceed 162, which would reduce the majority to 82.
By either of the latter modes, the memorialist, having 103 votes, would have been elected.
But the committee, after having carefully examined the subject, and the precedents of this house, in similar cases, are unanimously of the opinion, that, to entitle the memorialist to a seat, he must receive a majority of the votes of the electors who voted in said election, which is 108, and that the said William B. Adams received but 103 votes, and therefore was not choren a representative of said town.”
The report was agreed to.2
51 J. H. 47, 80.
51 J. H. 169.
Same, 176. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502514/ | The election of Abel White, returned a member from the town of Phillipston, was controverted by Elijah Gould and others, on the ground, that, at the meeting for the choice of a representative in said town, the poll was not kept open a reasonable and proper time.1
On the tenth of June, the committee on elections made the following report,2 in this ease :—
8 They have examined the depositions, furnished by the petitioners, in support of their allegations, and heard the answer of the sitting member thereto, and are of opinion, that, although all the usual facilities for an exercise of the elective franchise, by all the citizens of that town, at the late, representative election, were not afforded by the selectmen, in consequence of which, many of the legal voters did not exercise the right of voting, who had intended to do so; yet there does *270not appear to be any such infringement of personal rights, in this respect, as would require the interference of the house. The committee therefore report, that Abel White is entitled to a seat.”
The report was re-committed, with instructions to the committee to report the facts.
On the thirteenth, the committee reported a statement of facts, as follows: —
“ The meeting of the inhabitants of the town of Phillipston, for the choice of a representative in this legislature, was regularly warned and held in said town, on the eleventh day of May last, at two o’clock, P. M.; the poll for such choice was declared open by the selectmen, within a few minutes of that hour, and was kept open from twelve to twenty minutes, and until all persons in the meeting-house, having a right to vote, and desirous of exercising that right, had voted; the poll was then closed, (previous notice thereof having been given by the board of selectmen,) the votes counted, and a record thereof made, by which it appeared that thirty-three votes had been cast, all of which were for Mr. White.
It further appeared, that the usual time, for opening meetings in said town, had been at from one quarter to three quarters of an hour after that named in the warrant for holding such meeting; but the practice in this respect had not been uniform ; that on this occasion, a considerable number of the inhabitants, who had come to vote in the representative election, had lingered at an adjacent public house, while it was pending, until informed that the poll was closed, and Mr. White elected, in expectation that the opening of the meeting, and closing of the poll, would be delayed as usual; and that, on learning that the poll was closed, several persons, having a right to vote, immediately went to the meeting-house, demanded the privilege of voting, and were refused by the selectmen. The number who thus lost their privilege did not appear to the committee ; but on a subsequent ballot, taken on the proposed amendment to the constitution, seventy-one votes were cast, as appears by reference to the return of that town *271in the secretary’s office. Among those, who were thus prevented from voting, were two of the board of selectmen, who subsequently signed Mr. White’s certificate of election,
The sitting member alleges, that notice had been given by the selectmen, that this meeting would be opened punctually at the hour named in the warrant; but it does not appear to have been given at any public meeting of the inhabitants, or to have been generally circulated.
It did not appear, that any opposing candidate to Mr. White would have been voted for, if the poll had been kept open for any longer period, Mr. White is chairman of the board of selectmen in the town of Phillipston, and the petitioners allege, that said board contains also two of his near relatives.
The above are all the facts which can have any bearing on the decision of the house.”
Upon these facts, the first report, declaring Mr. White to be entitled to his seat, was agreed to.1
Note. By the adoption of the tenth article of amendment to the constitution, the political year 1831 terminated on the Tuesday next preceding the first Wednesday of January, 1832. The amendment provided that the political year should thereafter commence on the first Wednesday of January, instead of the last Wednesday of May, and that the general court should assemble every year on the first Wednesday of January, and should proceed, at that session, to make all the elections and do all the other acts, which, by the constitution, are required to be made and done at the session which had previously commenced on the last Wednesday of May. Before the adoption of the amendment, it had been customary for the legislature to have two sessions a year, the first commencing on the last Wednesday of May, as required by the constitution, and the other held by adjournment on the first Wednesday of January *272following. Since the adoption of the amendment, with two or three exceptions, there has been but one session a year, commencing with the political year on the first Wednesday of January. In the year 1885, and again in 1842, there was a second session.
52 J. H. 57.
Same, 118.
52 J. H. 124, 178, 183. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502515/ | The election of Azor Harris and Joseph Chamberlin, Jr., members returned from the town of East Bridgewater, was controverted by Hector Orr and others, on the ground, that, after a meeting had been duly held in said town, at which it was voted not to send a representative, and the meeting had been dissolved, a second meeting was called, at which the members returned were elected.1
*273The committee on elections reported, in this ease, as follows :—
“ A town-meeting was duly holden in said town, for the choice of representatives, on the fourteenth day of November last past, being the second Monday of said month ; at which meeting, on the question whether the town should be represented the present year, the same was decided in the affirmative; on the question whether the town should send two representatives, the same was decided in the negative; and on the question whether the town would send one representative, that also was decided in the negative. A motion then prevailed to dissolve the meeting, and it was dissolved accordingly On this day, no balloting whatever for representatives took place.
Afterwards, at the written request of more than ten of the freeholders in said town, the selectmen thereof issued their warrant, and called another meeting of the inhabitants, on the twenty-eighth day of November, being the fourth Monday of said month, for the choice of representatives, at which last meeting, the said Azor Harris and Joseph Chamberlin, Jr. were chosen to represent said town in the present general court. No objection is made to the manner or the warning of this last meeting. But the petitioners object, and say, that the last meeting was not agreeable to the constitution, and was illegal. The constitution provides, that ‘ the meeting, for the choice of governor, lieutenant-governor, senators, and representatives, shall be held on the second Monday of November, in every year, but meetings may be adjourned, if necessary, for the choice of representatives, to the next day, and again to the next succeeding day, but no farther. But in case a second meeting shall be necessary for the choice of representatives, such, meeting shall be held on the fourth Monday of the same month of November.’
Upon these facts, the committee have come to the conclusion, that the second meeting was rightly held, and that Azor Harris, and Joseph Chamberlin, Jr., were elected representa*274tives of said town, agreeably to the provisions of the constitution, and are entitled to their seats.”
The report was agreed to.1
53 J. H. 16, 46.
53 J. H. 118, 161. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502516/ | The election of Josiah Pomroy, returned a member from the town of Gill, was controverted by Benjamin Brainard and others, for the reason stated in the case of East Bridgewater abovementioned. The committee on elections made a report thereon as follows:—
“ A meeting for the choice of representatives was duly holden in said town, on the second Monday of November last, at which meeting, after a number of unsuccessful ballotings for a representative, the town voted not to be represented. Afterwards another meeting was warned, and held on the fourth Monday of said month of November, at which last meeting Mr. Pomroy was chosen.
The committee are of opinion, that the second meeting was constitutional, and that said Pomroy is entitled to a seat.”
The report was agreed to.2
[The only difference, between this and the East Bridgewater case, is, that in this it does not appear whether the selectmen called the second meeting of their own authority, or, at the request of ten or more of the freeholders, as in that case.]
Same, 125, 167. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502517/ | The election of Nymphas .Pratt, returned a member from the town of Shrewsbury, was controverted by Josiah Norcross and others, for the following reasons : 1. That at the meeting for the choice of a representative, in said town, the votes of Norcross, and one Maynard, who would have voted against the said Pratt, were improperly rejected; and 2. That Eddy Tucker, one of the voters, having accidentally dropped his vote, before putting it into the ballot box, the presiding selectman, (Mr. Pratt, the member,) picked up a different vote, having his own name on it, and put it into the box, as and for the vote of said Tucker.1
The committee on elections made the following report, in this case, which, was agreed to2: —
“ A town-meeting was duly held in said town, for the election of a representative to the general court, on the fourteenth day of November last, being the second Monday of said month, at which meeting, the said Nymphas Pratt, being chairman of the selectmen, presided. The whole number of votes given in was two hundred and five, of which the said Pratt had one hundred and four, the rest being distributed among a number of candidates.
It appeared to the committee, that, at a meeting of the selectmen, duly held during the hour previous to the town-meeting, it was agreed by them, that Josiah Norcross and all others, who should come forward in the meeting-house, at the election, and satisfy the selectmen, that they possessed the requisite legal qualifications to vote, should then have their *276names inserted on the list, if they should request it. It further appeared, that the said Josiah Noreross, while the town clerk was calling the list of voters the second time, and after he had passed the letter N, offered his ballot for state and comity officers, to the chairman of the selectmen. The chairman refused his ballot, at the same time turning to the town clerk and saying, that Josiah Noreross wished to vote, to which thf clerk replied, that he could not attend to it then, as his name was not on the list, but would, when he had finished calling. After the list had been called over the second time, a loud proclamation was made by the chairman, that all wdio had a right to vote, might now have an opportunity. None, however, then offered to vote. There was no evidence, that Noreross dpsired that his name should be inserted on the list. On the balloting for representatives to the general court, Nor-cross did not oiler to vote, but it was testified by him, that, had he voted, he would have voted for Thomas Harrington, Jr. It was admitted, that the said Noreross possessed the constitutional qualifications to vote for representatives to the general court.
On this evidence, the committee are of opinion, that the rejection of the vote of Josiah Noreross, in the election of governor, lieutenant governor, and senators, is not a valid objection against the election of Nyrnphas Pratt, because, no vote of Noreross was tendered in the election of a representative; and because, if it had been tendered and rejected, Mr. Pratt would still have had a majority of the votes given in. And besides, the name of the said Noreross was not upon the list.
But the petitioners further object to the election of Mr. Pratt, because he improperly put into the ballot box a vote for himself, under color of receiving the vote of one Eddy Tucker. Mr. Tucker was a legal voter, and accidentally dropped his vote, in attempting to put it into the box, Mr. Pratt took up a vote from the place where Mr. Tucker’s vote appeared to fall, and holding it up, and inquiring of the said Tucker, ‘ if this was not his vote,’ and saying, ‘ this must be the vote,’ put it into the box. One witness testified in one deposition, that *277he saw on the ballot, thus put in by Mr. Pratt, the letter ‘ N,’ and the word ‘ Pratt;’ and in another deposition, the same deponent adds, that he thinks it bore the name of ‘ Nymphas.’ The said Tucker himself testified in one deposition, that he assented to the act of the said Pratt, in putting into the box the abovementioned vote, and in another deposition he swears that he neither assented, nor objected to it, and that he did not know, whether the said vote was bis or not. He further says, that his ballot bore the name of Thomas Harrington, Jr.
The testimony of another witness, Calvin H. Stone, was, that the vote of the said Tucker was dropped in the direction of the town clerk’s desk, that the chairman followed it with his hand, took up one from the desk, and looking at said Tucker, and bowing, deposited it in the box, Mr. Tucker appearing to consent.
The only additional evidence, relative to this part of the case, was the deposition of Henry Snow, the town clerk, and one of the candidates for representative. He deposed, that he wrote but two votes on the day of election, and they were both for Nathan Pratt; one of which he put into the box, the other he left in the corner of his writing desk, on which he saw no other vote during the day. A few minutes after he had voted, he heard some one say, ‘ you have dropped your vote,’ to which, another, he did not know who, replied, ‘ I thought it dropped in.’ The chairman then looked over the table for it, and the deponent saw the hand of the chairman having a vote therein, moving from the deponent’s writing desk towards the ballot box; the chairman then looking at some person unknown to the witness, said, ‘ yes, I presume this is your vote,’ and dropped the ballot into the box. The deponent further says, that he did not afterwards see the vote for Nathan Pratt on his desk. He further testifies, that on counting the votes for representative, he saw among them two votes for Nathan Pratt, in his own hand writing, and they were the only ones counted for that candidate, though Luke Harrington deposed, that he also voted for Nathan Pratt,
The committee, on this evidence, believe that the vote put *278in by the chairman, as and for the vote of Eddy Tucker, was not for himself, but that it bore the name of Nathan Pratt, and so would not affect the majority of the sitting member; and, that even on the supposition, that it bore the name of Nymphas Pratt, the sitting member would still be chosen by a majority of votes. If any mistake actually occurred, with regard to the vote of Mr. Tucker, the committee have seen no reason whatever, to suppose that it was intentional on the part of Mr. Pratt.
On the whole, the petitioners must establish both a wrongful rejection of the vote of Josiah Norcross, and a wrongful admission by the chairman of a vote for himself, before they can prevail; and as the committee think, that so far from substantiating both of these positions, the petitioners have failed in both, they are of opinion, that Nymphas Pratt was duly elected a member of this house, and is entitled to his scat.”
53 J. H. 50.
Same, 318, 398. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502518/ | The election of Warren Chapin and Henry Phelon, two of the four members returned from the town of West Springfield, was controverted by Hernán Day and others, for the following reasons alleged in their remonstrance : 1. That the presiding officer, after two representatives had been chosen, refused to “ make certain” the vote of the meeting upon a motion to *279adjourn, the vote having been declared, to be in the negative, and being doubted by more than seven of the legal voters; and 2. That the presiding officer also refused to put a motion, to reconsider the vote to send four representatives, which had been previously passed.1
The committee on elections reported as follows2: —
“ A meeting was duly holden in said town, on the fourteenth day of November last, for the choice of representatives. A motion was regularly made, that said meeting should choose one representative, which was decided in the negative. A motion was then made to choose four representatives ; this motion was put, and it was declared to be a vote. This decision was doubted, and a division was called for, and the selectmen requested those opposed to the motion to leave the hall in which the meeting was held, and arrange themselves so as to be counted; this was done, and then those in favor of the motion were requested to leave in like manner, and be counted; this being done, the chairman of the selectmen declared, that a majority was in favor of the motion. The majority on this last motion is stated to have been about thirty. It appeared that the hall, in which said meeting was holden, was so filled with people that it would have been somewhat difficult to have polled the voters therein. After this decision, a motion was duly made, to elect the four representatives on one ticket. This motion was put, and it was declared to be a vote. This decision was doubted, and a division was called for, and the selectmen requested the meeting to divide as on the motion to send four representatives, in order to be counted, and those opposed to the motion on being requested to leave the hall, refused to go, and no count took place. They did not offer to be counted in the hall, and no reason was assigned for the refusal. This last motion was then withdrawn, and a motion prevailed to elect one representative at a time. The meeting then proceeded, and elected two representatives. The presiding officer then called upon the electors, to bring in their votes for the third representative, but before any votes for the *280third representative were deposited in. the ballot box, a motion was regularly made and seconded to adjourn the meeting; at which time, it appeared, that it was nearly sunset. This motion was put, and the presiding officer declared it not a vote to adjourn. This decision was doubted, those of a contrary mind were then called for, and it was again declared not to be a vote. It was still doubted, and the presiding officer again propounded the question, and put the motion, and again declared it not a vote to adjourn. Tills decision was immediately doubted by more than seven of the voters, and a division was called for by them. The presiding officer said he had decided that it was not a vote to adjourn the meeting, and the town had already decided to send four representatives, and he called upon the meeting to bring in their votes for a third representative. At this time, it appeared that there was much noise and clamor in the hall, some alleging thap it was a rote to adjourn, and others that it was not, and some insisted on a division, that the vote might be made certain. The presiding officer said he had requested a division before, and there was a refusal, and there would be again, if he requested it, and called again for the votes for a third representative. Upon this a large number of voters withdrew from the meeting, some protesting against the proceedings, and declaring, that if the meeting proceeded any further, their doings would be illegal and void. Those who remained there carried in their votes, and the said Chapín and Phelon were declared elected representatives. It appeared, that the number of votes, given in for said Chapin and Phelon, was less than the number necessary to a choice in the election of either of the two first chosen ; and that nearly all that were cast, when said Chapin and Phelon were severally elected, were for them. It farther appeared, that some, who doubted the vote to choose the four on one ticket, and who refused to leave the hall to be counted, were active in doubting the decision on the motion, to adjourn. It did not appear that said Chapin and Phelon were present at said meeting. There was evidence tending to show, that a majority of said meeting was against the motion to adjourn.
*281The committee after a full investigation of this case are of opinion, that it was the duty of the selectmen, as presiding officers of the meeting, to have made certain the vote on the motion to adjourn by polling the voters, inasmuch as it was doubted by more than seven, and as the meeting did not decide upon any other mode to determine the question ; that it was not for the chairman of'the selectmen to determine it in the manner he did; and although he might fully believe, that there was a majority against the motion to adjourn, he had no right, under the circumstances of the case, however fair and honest might be his views, to adhere to his decision, without polling the voters, and settling the question in that way. In this view of the case, the committee cannot come to any other conclusion than that the proceedings of the meeting, so far as they relate to the election of said Chapin and Phelon were illegal and void, and that said Chapin and Phe-lan are not entitled to seats in this house.”
The consideration of this report, without much debate, was indefinitely postponed.1
53 J. H. 45, 53.
Same, 225.
53 J. H. 316. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502519/ | The election of William B. Breed, Jonathan Buffum, Joseph Currier, Jacob Ingalls, Francis S. Newhall, Bleazer C. Rich*282ardson, and Stephen Oliver, members returned from the town of Lynn, was controverted by James < íardncr, and others, on the ground of Improper conduct on the part of the selectmen, who presided in the meeting, at which the said members were elected,1
The facts in the case are stated at length, in the following report2 of the committee on elections: —
“ A meeting of the inhabitants of said town was holden, for the choice of representatives, on the second Monday oí November last; and previous to said meeting, the selectmen had caused to be prepared and posted up an alphabetical list of the voters in said town, and gave written notice, which was posted with the list, that a meeting of the selectmen would be holden on Saturday previous to the day of election, from two to four o’clock, P. ML, for the purpose of correcting the list. It appeared that two of the selectmen, there being but three in said town, did meet in pursuance of such notice, but no person appeared before the selectmen for the purpose of showing his right to vote, and procuring an insertion of his name on the list. It also appeared, that the two selectmen, the other being sick and unable to attend to his duty, held another meeting on the day of election, from nine to ten o’clock, A. M., for the purpose of receiving evidence of the qualifications of such as claimed a right to vote in the election. This last meeting was duly notified. At this meeting, a number of persons applied, and claimed the right to vote. A hearing was given to such as applied, and a supplemental list was made out, which was not in alphabetical order.
The meeting, on the day of election, was opened at ten o’clock, A. M.; and notice was given, when the meeting was called, that the poll would close at three o’clock, P. M. The voters carried in their ballots for governor, lieutenant-governor, senators, and representatives, on one ticket. The selectmen, when the poll was opened, called upon six or seven persons to check the list, when the voters should give in their votes. Two of the sitting members, namely: Stephen Oliver, and *283Francis C, Newhall, were employed for that purpose. It also appeared, that some names were added to the list after the poll was opened, and one by said Oliver, by order of the selectmen, and that such as were added voted in the election.
It further appeared, that one person voted in the election, but not for the sitting members, whose name was not on either of the lists ; that two others applied to have their names inserted, and to vote, but were refused the right to vote, solely on the ground, that their names were not on the list, the selectmen assigning, as a reason, that they had but one rule, on that subject. It further appeared, that the town clerk, who was not one of the selectmen, sorted some of the votes before the poll was closed; that Jacob Ingalls, one of the selectmen, and one of the sitting members, also counted a part of the votes before the poll was closed, and having given the number to the other selectman, who presided with him at the meeting, threw the votes, so counted by him, under the table. It further appeared, that William B. Breed, another of the sitting members, and not being selectman, was at the ballot box before the poll was closed, handling the votes; and said Breed, and two others, not sitting members, cut and severed the ballots, that did not contain the names of those they called the regular candidates, of the three parties, at the election. It further appeared, that these votes were counted, after they had been severed, and that the persons employed as checkers, and those who lent their aid to cut the ballots, belonged to different parties in the town.
It further appeared, that the selectmen received the ballots from the voters into their hands; and these said selectmen deposited the ballots in the box, and that such had been the usage in that town ; that the selectmen found two double ballots, and threw away one of each, without counting those so thrown away, and these were for the sitting members.
It further appeared, that the two selectmen who presided at the meeting counted the votes separately, and gave the number of their respective counts to the town clerk. It did not appear, by the records of the town, that the selectmen had *284taken the oath prescribed by law in relation to elections, but it did appear, by the testimony of the town clerk of said town, that they had taken said oath.
A copy of the record of all the votes, given in on the day of election, in said town, accompanies this report.
The committee have given to this case a patient and long hearing, and have endeavored to present the facts that appeared to them material to a just decision. The committee are fully satisfied, that the sitting members received a majority of the votes given in at the election. And, although they cannot but feel sensible that the meeting was conducted in a loose and improper manner, and in a way that has a tendency to open a wide door for fraud and collusion in elections, yet, inasmuch as no fraud or collusion was proved to have been practised in this election, the committee have come unanimously to the conclusion, upon a view of the whole case, that the election of said Breed, BufFurn, Currier, Ingalls, Newhall, Oliver and Richardson is valid, and that they are entitled to hold their seats.”
The report was agreed to.1
53 J. H. 44, 53.
Same, 167.
53 J. H. 246. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502520/ | In the senate, on the eighth of February, 1832, it was
Ordered, That the justices of the supreme judicial court be requested, as soon as may be convenient, to give their opinion on the following question : — :
Whether those persons, who are exempted from taxation by town assessors, under the authority given them in the following clause in the usual tax acts of the commonwealth: — !! And if there be any persons, who, by reason of age, infirmity, or poverty, may be unable to contribute towards the public charges, in the judgment of the said assessors, respectively, they may exempt the polls and estates of such persons, or abate any part of what they are assessed, as the said assessors may deem just and equitable,” — and who have the requisite qualifications as to age and residence, are entitled to vote for *286governor, lieutenant-governor, senators, and representatives, under the third article of the amendments to the constitution,
On the thirteenth, the following opinion of a majority of the court, (Mr. Justice Morton being absent) was received by the president, and by him laid before the senate : — •
“ The third article of the amendments to the constitution of the commonwealth, upon which the question arises, is as follows, viz : — Every male citizen of twenty-one years of age and upwards, (excepting paupers, and persons under guardianship) who shall have resided within the commonwealth one year, and within the town or district, in which he may claim a right to vote, six calendar months, next preceding any election of governor, lieutenant-governor, senators, or representatives, and who shall have paid, by himself or his parent, master or guardian, any state or county tax, which shall, within two years next preceding such election, have been assessed upon him, in any town or district of this commonwealth, and also every citizen who shall be by law exempted from taxation, and who shall be, in all other respects qualified as aforementioned, shall have a right to vote, in such election of governor, lieutenant-governor, senators and representatives; and no other person shall be entitled to vote in such elections.’
This question appears to us to involve three distinct points, on subjects of inquiry arising from as many distinct clauses or provisions of the constitutional article cited.
1. Whether, the persons described, who may be exempted from taxation, or whose taxes, may be abated under the discretionary authority given to the assessors by the tax act, are “ paupers” within the meaning of the exception.
2. Whether they are by law exempted from taxation, so as to give them the political privilege of voting without being assessed to any tax.
3. Whether, not being paupers, and being liable to be taxed, or in fact assessed, though such tax be omitted, or abated under the discretionary authority of the assessors, they are to stand upon the same footing in regard to the privilege of *287voting as if they had been regularly assessed, and had actually paid a tax.
1. In a certain loose and indefinite sense, the persons in question may be called paupers. The case supposes them to be poor, and in consequence thereof, to be unable to contribute towards the public charges. But we are of opinion, that this is not the sense in which the word is intended in the constitution. Long before the adoption of the article in question, the word “ paupers’5 had acquired a precise and technical meaning, and was 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. Such provisions had been made, both in England and in this country, long before the adoption of this article, or of the original constitution. Besides, if it were intended to be understood in a more general sense, and as extending to all poor persons, it might go to exclude those from voting, whose poverty might be manifested in other modes than the one set forth.in the extract from the tax act. Considering how important it has always been regarded in the framing of fundamental laws, upon which the essential civil and political rights and privileges of the subject mainly depend, that words should be used in a sense as exact and definite as the nature of language will permit, and how careful the framers of our constitution have been in the observance of this rule ; and considering upon how indefinite and uncertain a basis, the important right of voting would have stood, had the word paupers been used in any other than the exact and technical sense which we have ascribed to it, our opinion is confirmed, that it was intended to be confined to persons claiming assistance for themselves or families, from the provision made by-law for the poor.
2. The next inquiry is, whether the persons described can be considered as persons exempted by law from taxation, within the meaning of the constitutional provision in question.
Here, as in the other case, in a certain loose sense, they may be said to be exempted by law, because the authority is given by law to the assessors, and when executed, it is by force of *288the law, that the exemption takes effect. But we are of opinion, that this is not the true construction of the clause, but that it means to designate those persons, who. by the terms of the act itself, are exempted, and where nothing more is necessary to give effect to the exemption, than for the person entitled to the benefit of it, to show that he comes within its terms.
Whether we regard the terms of the law imposing the tax, or the probable and obvious intent and design of the constitution, we think there will be discovered a broad and well defined distinction, between those exempted from taxation, by law, and those exempted, by reason of poverty and inability, under the discretionary authority given to assessors.
It had long been the practice in this commonwealth, in the assessment of taxes, to exempt certain persons, in terms, whose pursuits and employments were devoted to the public service, and who, in effect, must be supported at the public charge, such as settled ministers, officers and professors of colleges, preceptors and masters of public schools and academies. These persons were exempted, not on the ground of inability to contribute to the public charges, but because, as they labor wholly or chiefly, for the public, and are entitled to a support from the public, the exemption from taxation is only one means of contributing to their support; and, if they were held liable to pay any tax, their compensation for services ought justly to be enlarged in the same proportion, out of some other public fund. Such persons therefore do, in effect, contribute their share to the public charges; though they do it by their services, instead of a money rate.
In the tax acts, containing the clause recited in the order of the honorable senate, the act first provides for the absolute exemption of ministers of the gospel, the president and professors of colleges, and others specially enumerated, and then, in the same section, proceeds to vest a discretionary authority in thé assessors, to exempt those, who, through age, infirmity or poverty may be unable to contribute. Thus the act makes a strong and marked distinction between the two classes of per*289sons. The same conclusion results from the constitutional article in question, which puts those who are exempted by law exactly upon the same footing with those who actually pay taxes, in regard to the privilege of voting. We think this provision manifestly had reference to the old and uniform practice of exempting these classes of public servants from taxation, upon the grounds above stated, that these were the persons designated by the description “citizens exempted by law from taxation,” and that it can by no reasonable construction extend to those, who, at the discretion of the assessors, may be exempted on account of poverty or inability.
3. The remaining inquiry is, whether persons thus liable to be assessed, though in fact exempted, by the assessors, are entitled to the privileges of voters.
We are of opinion, that when such exemption has extended to two years they are not. We think it was the plain intent of this clause of the amendment of the constitution, to give practical force and effect to the maxim, that taxation and representation should go together; and to secure the right of electing those, who are to administer the government, to those who in fact contribute to its support. It confines the power therefore, in terms, to those who shall have paid some tax assessed within a short period preceding the election and for the sake of exactness fixes that period at two years. If therefore the persons in question have been exempted, for two entire years, either by being omitted in the assessment, or by the abatement of the tax, by the assessors, such persons are excluded by the plain terms and manifest intent of the constitution. But if such exemption has not extended to two years, and if the persons in question have paid any tax assessed within two years, although exempted the last year, such persons have a right to vote, coming within the terms of the constitution, and not being excepted as paupers.
It may be objected to this construction, that, consistently with it, aged and poor persons may be arbitrarily excluded from the right of voting, by the assessors, by the omission or abatement of their taxes.
*290But we think the tax act will not justly admit of this construction. It must be considered, that the liability to taxation, and the political privilege of voting, consequent thereon, ate established by different acts, at distant periods, and having distinct objects in view. Each must be construed by itself. The purpose of the tax act is revenue; it is to lay a burthen and charge upon the persons and property of the people, to provide funds for public objects. The privilege of voting, consequent thereon, is incidental and collateral, established by a distinct constitutional provision, and is not to be regarded as one of the purposes and designed effects of the act. Such effect, therefore, cannot be much regarded in its construction. The direct object of the act being to raise a revenue, by laying a tax and burthen upon the people, an exemption from such burthen must be regarded as a benefit conferred on those entitled to it. It is a general rale of law, that what is intended for one’s benefit, he may claim or waive, at his election, and this rule applies with increased force, when other and incidental consequences, important to himself, depend upon such election. So when a grant or bequest is made to one, being apparently for bis benefit, he may accept or waive it; this right is of the higher importance, where such grant or bequest is made upon some trust attended with responsibility, or upon other onerous conditions. So we think the exemption in question Was intended as a benefit to those who by reason of age, infirmity, or poverty, are unable to contribute, and one which if they so elect, they may waive, and in such case, it would not be in the power of the assessors to omit them in the assessment, or abate their taxes, against their consent, with a view either to affect their elective franchise, or for any other purpose. The language of the act is, that the assessors may exempt; which implies, we think, that it is to be done, with their consent, express or implied. It is true, that the word “ may,” is sometimes construed as imperative, and equivalent to “ shallbut it is only where the context and general purpose of the act or instrument manifestly require it. Here we think the context and general objects of the act require a dif*291ferent construction, and imply that the word “may” was used in its ordinary sense, as permissive, granting power to the assessors to allow the exemption, at the election of those entitled to the benefit of it.
On the whole, our opinion is, that the persons in question are not excluded from the right of voting as paupers ; that they are not entitled to vote, without paying taxes, as citizens exempted by law from taxation; and that if they have actually paid no tax, assessed within two years next preceding such election, though such non-payment was occasioned by an exemption or abatement, under the discretionary authority' of the assessors, such persons are not entitled to vote; but that if they have in fact paid any tax assessed within two years previous, they are entitled to vote in any election for governor, lieutenant-governor, senators, and representatives.
LEMUEL SHAW, SAMUEL PUTNAM, S. S. WILDE.
February 14, 1832. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502960/ | OPINION
Opinion delivered by
CADMAN, Associate Justice.
This opinion decides two appeals with similar facts and legal issues. Both appeals are Navajo Nation forcible entry and detainer actions under 16 N.T.C. §8 1801-1810 (1978).
*153I. FACTS
A. Burnside
The Appellants, George R. and Mary E. Burnside (“Burnside”), are lessees of Navajo Nation trust land. The land is located within the exterior boundaries of the Navajo Nation at the junction of Arizona Elighway 264 and U.S. Highway 191 near Ganado, Navajo Nation (Arizona).
On October 19,1978, the Navajo Nation granted Burnside a fifteen-year business site lease (“Base Lease”) with an option to renew for an additional ten years. Paragraph 11 of the Base Lease explicitly provides that any sublease of the leasehold interest is subject to approval by the Navajo Nation and the Secretary of the United States Department of the Interior (“Secretary”), and that any sublease without such approval shall not be valid or binding.
Upon granting the Base Lease, the Navajo Nation also approved a sublease of the property (“Sublease”) to the Appellee, Thriftway Marketing Corporation (“Thriftway”). The term of the Sublease was ten years from the date of approval by the Secretary. Approval was granted for both the original Base Lease and the original Sublease on November 14, 1978.
Following approval of the Base Lease and the Sublease, the parties set aside a portion of the four-acre plot to build and operate a convenience store and gas station, called “Burnside’s Thriftway.”
Anticipating the Sublease’s expiration in November, 1988, on June 29, 1988, the parties agreed to extend the Sublease an additional five years (until November 14, 1993). In addition, Burnside granted Thriftway an option to extend the Sublease for two additional five year periods. This purported extension of the Sublease and the option were not approved by the Navajo Nation or the Secretary.
In October 1993, Burnside exercised its option to extend the Base Lease for an additional ten years to November, 2003. On July 1, 1994, Burnside demanded that Thriftway vacate the premises by August 1, 1994. Thriftway did not vacate and affirmatively refused to vacate.
On August 18, 1994, Burnside sued Thriftway under the Navajo Nation forcible entry and detainer statute.
B. Nakai
On May 4, 1969, the Navajo Nation entered into a Base Lease with the Appellee, Raymond Nakai Sr. (“Nakai”) for an approximately three-acre parcel of Navajo Nation trust land at Lulcachukai Junction. The leased premises is located within the exterior boundaries of the Navajo Nation. The original term of the Base Lease was twenty-five years, beginning on the date of approval by the Secretary, with an option to renew for an additional twenty-five years. The Base Lease was approved by the Secretary on May 14, 1969.
*154On June 14, 1978, Nakai entered into the Sublease with Thriftway Marketing Corporation (“Thriftway”) for the operation of a gas station and convenience store on one-acre of the parcel leased to Nakai under the Base Lease. It was subject to the terms of the Base Lease. The Sublease was approved by the Secretary on August 11,1978. Both the Base Lease and the Sublease expired on May 14,1994.
On June 14, 1994, Nakai exercised his option to renew the Base Lease for an additional twenty-five years and obtained approval from both the Navajo Nation and the Interior Department. However, Nakai did not agree to renew Thriftway’s Sublease.
On May 9, 1994, Nakai sent a letter to Thriftway stating that the Sublease would terminate May 14, 1994, and that it would not be renewed. In the letter, Nakai asked Thriftway to vacate the subleased premises by May 14, 1994. Thriftway did not vacate and continues to occupy the property and conduct business operations. On September 26,1994, Nakai sued Thriftway under the Navajo Nation forcible entry and detainer statute.
II. FORCIBLE ENTRY AND DETAINER
The threshold issue in these appeals is the proper scope of the Navajo Nation forcible entry and detainer statute. In this consolidated opinion, the Court will define appropriate causes of action under the statute.
Under the Navajo forcible entry and detainer statute, a person is guilty of forcible entry and detainer if he or she willfully “holds over any lands, tenements or other real property after termination of his right to possession thereof.” 16 N.T.C. § 1801(a) (2). To regain possession of the real property under subsection 1801(a) (2), a plaintiff lessor must show the following: 1) the defendant’s right to possession has terminated; 2) the plaintiff is entitled to possession; and 3) the plaintiff has made a written demand for possession of the premises in dispute.
A forcible entry and detainer action is a summary statutory action to adjudicate possession rights, and it should not be burdened by matters that are not related to the issue of possession. Section 1805(a) states, “on the trial of an action of forcible entry or forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.” The statute distinguishes between an action raising the legal question of who “owns” the fee title to the land (e.g., the ancient action in ejectment) and an action determining the legal right of possession. Therefore, the forcible entry and detainer action is designed to determine possessor rights to land, which is any interest other than fee simple title.
Clearly, the scope of the Navajo Nation forcible entry and detainer statute includes causes of action related to possession. For example: 1) actions asserting a superior right of possession; 2) actions regarding the breach of an agreement granting the right of possession to the plaintiff; 3) actions establishing or challenging the validity or enforceability of an agreement on which a right of possession is based; and 4) actions questioning the plaintiff’s motivation for bring*155ing the action. See, People ex rel. Department of Transportation v. Walliser, 258 Ill. App.3d 782, 788, 629 N.E.2d 1189, 1194 (1994). In addition, the statute is designed to address occupancy by trespass or squatting and other wrongful possession of land.
This Court finds that the claims in both Burnside and Nakai can properly proceed under the forcible entry and detainer statute.
III. Burnside v. Thriftway
In Burnside, the Window Rock District Court erred in holding that inquiry into the contract’s validity is beyond the scope of a forcible entry and detainer action. The district court improperly refused to analyze the contract’s validity by finding that such analysis is a question of the merits of title and not possession. The contract in Burnside does not confer title upon Thriftway for the purposes of an inquiry into the merits of title, but only the right to possess and use land for a period of time. Therefore, the district court erred by not interpreting the contract instruments (i.e., the Base Lease and Sublease) to decide what interest Thriftway had in possession of the land.
Presumably, the district court was relying on the common law notion that ownership is not a proper subject of inquiry because it is beyond the scope of the determination of possession. However, the validity of a lease or sublease may be the very basis upon which a party malees its claim to a right of possession. When a party bases its claim to a right of possession on a lease or sublease, the validity of that lease or subleasease is properly subject to inquiry in an action for forcible entry and detainer.
Given the relevance of the validity of a lease or sublease agreement to a party’s claim to a right of possession, it is illogical to interpret the term “title” in section 1805(a) to include sublease estates. It would not make sense for the statute to prohibit inquiry into the very basis upon which a claim to a right of possession is made. “Title,” in section 1805(a), can only refer to ownership. Therefore, we hold that section 1805(a) prohibits inquiry into ownership, but does not prohibit inquiry into the validity of a lease or sublease claimed to grant a right of possession. The district court erred in declining to construe the validity of the Sublease in this case.
Generally, a sublease is subject to the limitations, terms, and conditions of the primary leasehold. See, e.g., Kuykendall v. Tim’s Buick, Pontiac, GMC & Toyota, Inc., 149 Ariz. 465, 469, 719 P.2d 1081, 1085 (1985); MAC Enterprises, Inc. v. Del E. Webb Development Co., 132 Ariz. 331, 335, 645 P.2d 1245, 1249 (1982). The Base Lease in this case required approval from the Navajo Nation and the Secretary for all subleases. Therefore, because the disputed contract is a sublease, subject to the terms of the Base Lease, it is invalid without the required approval.
Furthermore, 25 U.S.C. § 81 and § 415 require the Secretary’s approval of all contracts relating to Indian trust land. Both sections 81 and 415 state that all con*156tracts lacking such approval are “null and void.” The Ninth and Tenth circuits have consistently upheld this requirement. U.S. ex rel. Citizen Band of Potawatomi Indian Tribe of Oklahoma v. Enterprise Mgt. Consultants, Inc., 883 F.2d 886 (10th Cir. 1989); Barona Group of Capitan Grande Band of Mission Indians v. American Management and Amusement, Inc., 840 F.2d 1394 (9th Cir. 1987), cert. denied 487 U.S. 1247; A.K. Management Co. v. San Manuel Band of Mission Indians, 789 F.2d 785 (9th Cir. 1986). Since there was no Secretarial approval of the contract, it is void as a matter of law. We adopt the approval requirement as a matter of Navajo Nation law. Perhaps in the future, as the Nation gains more self-sufficiency, section 81 approval may not be necessary. This is a matter for the Nation and the Federal Government to negotiate.
The terms of the Base Lease also require Navajo Nation approval of the contract. Approval by the Navajo Nation is necessary to ensure that the Nation efficiently and effectively manages Navajo Nation lands.
Burnside was responsible to obtain the required Sublease approval from both the Secretary and the Navajo Nation. Burnside never obtained such necessary approval. It is not important which party was to obtain the Sublease approval. The important issue is whether or not the approval was actually obtained. Irregardless of which party was at fault for not obtaining the necessary approval, the requirement was not met, and the Sublease is invalid. It is beyond the scope of this Court’s duty to delve into the relationship between the parties beyond what exists in the documents involved in the case. Both parties share some of the blame for any breakdown in the arrangements between them. This Court’s duty is not to apportion blame, but to decide whether the district court acted properly, and to determine who has a right to possess the property.
The Sublease is not valid, it cannot be the basis of any right of possession by Thriftway. No other source of such a right is apparent. Burnside has a right to possess the property under the Base Lease with the Navajo Nation. The record shows that on July 1, 1994, Burnside gave Thriftway notice to vacate the disputed property. Burnside has, therefore, met all of the requirements of a forcible entry and detainer action.
We reverse the Window Rock District Court’s decision stating that this case is not a forcible entry and detainer action. The case is remanded to the Window Rock District Court with instructions to enter judgment for Burnside and to order Thriftway to vacate the premises. Failure to comply will result in further action by the district court to enforce its judgment.
IV. Nakai v. Thriftway
A. Motion to Dismiss
There is some confusion about the filing of a transcript with the district court and its subsequent submission to the Supreme Court. Rule 9 (b) (4) of the Navajo Rules of Civil Appellate Procedure requires that “the appellant shall file an orig*157inal and one copy of the transcript with the clerk of the district court..., within the period of time for transmitting the record stated in Rule 9(a).” According to Rule 9(a), the period for transmitting the record to the Supreme Court, including the transcript, is “30 days from the date of filing the Notice of Appeal.” NRCAP 9(a) (2). The record shows that Thriftway filed its notice of appeal on December 12, 1994, and the last day for filing the transcript was January 11, 1995. The Chinle District Court did not receive the transcript from Thriftway until February 15, 1995. Subsequently, the Supreme Court received the transcript on March 2, 1995. Thriftway did not timely file the transcript of proceedings.
Thriftway claims that it is not clear in the Rules who is responsible for the timely filing of the trial transcript. Thriftway relies on the language of Rule 9(a) (2) which states that, “the clerk of the district court shall number the items comprising the record, and shall transmit the record to the Supreme Court, together with an appropriate index listing the contents of the record and the number thereof, within 30 days from the date of filing the Notice of Appeal.” NRCAP 9(a)(2). Thriftway believes that the clerk of the Chinle District Court was responsible for the timely filing of the transcript, and not it as the appellant. This is an incorrect interpretation of the Rules.
The Rules place the responsibility on the appellant for the timely filing of the trial transcript with the district court. The clerk’s job is to transmit the trial transcript to the Supreme Court. Pursuant to Rule 9(b)(4), Thirftway, as the appellant, is responsible for filing an original and one copy of the trial transcript with the clerk of the district court within 30 days from the date of filing the notice of appeal. NRCAP 9(b)(4). The motion to dismiss is denied.
B. Merits of the Case
The Chinle District Court properly allowed the case to proceed as a forcible entry and detainer action. It found that the interpretation of the Base Lease and the Sublease did not exceed the scope of inquiry in a forcible entry and detainer action. The court further found that interpreting the leases aided the determination of entitlement to actual possession and not the merits of title. The court determined that the Base Lease did not grant the sublessor an automatic extension of the terms of the Sublease upon renewal of the Base Lease. We agree with the district court’s interpretation of the Base Lease language and its ruling that the Sublease is void. We affirm the Chinle District Court’s decision holding that Nakai effectively terminated Thriftway’s tenancy as of May 14, 1994 and that Thriftway has been a tenant at sufferance since May 15, 1994.
This case is remanded to the Chinle District Court for proceedings consistent with this opinion. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502961/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
This appeal concerns a claim for child support. The Appellant, Dutch Higdon, was ordered to pay current and back child support to Appellee, Gloria Nelson. Higdon claims that the family court abused its discretion because it failed to accurately calculate the 20% amount of his take home pay for child support. Higdon also claims that the family court’s determination of his take home pay resulted in an unlawful modification of its original child support order. The issue of back child support is not part of this appeal.
I
On April 29,1992, Nelson filed suit in the Shiproclc Family Court to establish paternity and obtain child support from Higdon. The court ordered the parties to take blood tests. The tests confirmed that Higdon was the father of the child.
On January 6, 1994, the court entered an amended final order establishing paternity. In this same order, the court adopted the parties’ written stipulation on child support. The relevant terms of the order are these: 1) During the periods when Higdon is employed he shall pay twenty percent (20%) of his take home pay to Nelson for child support; and 2) During periods when Higdon is employed he shall provide proof of earnings to Nelson with copies of monthly pay stubs, yearly tax returns and W-2 statements.
On March 16, 1994, Nelson filed a motion for an order to show cause alleging that Higdon had failed to pay any child support and had failed to provide her with proof of his earnings. Higdon’s employment records had to be subpoenaed from his employer by the court.
*159On May 3, 1994, the family court conducted a hearing to determine whether Higdon had failed to abide by the court’s January 6, 1994 order. It took the case under advisement and on May 17, 1994, it issued a judgment and found Higdon in contempt of court. The court found that Higdon had not paid any support and had not provided Nelson with his employment information. The court ordered Higdon to pay Nelson $3,342.45, which represented $2,574.45 for back child support through April, 1994, $500 in attorneys fees, $68.00 for costs and $200 for blood test expenses. On the finding of contempt, Higdon was sentenced to 90 days in jail, which the court ordered suspended once he made the child support payments and kept his employment status current.
The court ordered that Higdon’s wage be garnished in the amount of $500 per month — $333.35 to go to current child support and $166.65 for payment on the arrearage.
II
Higdon claims that the family court abused its discretion when it set current child support at $333.35 per month. Higdon argues that the amount of his salary was inaccurately calculated by the court. Higdon does not dispute that he is ordered to pay 20% of his take home pay as child support. He disputes that amount that the court found as his take home pay.
To successfully challenge the findings of a trial court, an appellant must demonstrate that they are clearly erroneous. This Court gives considerable deference to the family court’s exercise of discretion. Alonzo v. Martine, 6 Nav. R. 395 (1991); Help v. Silvers, 4 Nav. R. 46, 47 (1983). The burden is on Higdon to prove that the family court abused its discretion.
Upon review of the record, we find that the family court made specific findings of fact regarding Higdon’s salary, given the evidence introduced before it. Higdon must demonstrate that the court miscalculated his salary after considering the available evidence before it. Higdon cannot make such a showing. The figures that Higdon now presents on appeal were never introduced before the family court, and thus, are extraneous to the record. The record shows that Higdon had an opportunity to present evidence of his salary and refused to do so. In fact, evidence of Higdon’s salary had to be subpoenaed from his employer by the court. In addition, Higdon had the opportunity to rebut the evidence present1 ed against him, and again he failed to do so. Higdon’s claim that the court inaccurately calculated his salary is therefore without merit.
Higdon then claims that the court abused its discretion in setting $333.35 per month as current child support because his salary fluctuates. This claim fails for the same reasons as discussed above.
Higdon also claims that the court abused its discretion when it unilaterally modified its January 6,1994 child support order. Higdon cannot point out to this Court what part of the order was modified. The best that Higdon can do is argue *160that the family court’s 20% figure does not correspond to his own 20% figure of his take home pay. Higdon claims that his 20% figure amounts to $234 a month as opposed to the court’s 20% figure of $333.35. Higdon claims that deductions should have been made for his retirement benefits. First, there is nothing in the record to show that the court used a figure other than 20% to calculate the amount of current support. Second, the court reasonably determined Higdon’s take home pay using the evidence before it. Finally, deductions for retirement benefits is not an allowable deduction. See Descheenie v. Mariano, 6 Nav. R. 26 (1988). Again, all of these figures were arrived at in the presence of Higdon and he failed to object.
Finally, Higdon argues that the combined amount of child support and back child support that has been ordered garnished from his wages ($500) causes him extreme hardship. This argument was not presented to the family court and thus is beyond this Court’s scope of review. Gudac v. Marianito, 1 Nav. R. 385, 394 (1978).
Higdon has not satisfied the clearly erroneous standard; thus, we find no abuse of discretion by the Shiprock Family Court. The judgment of the Shiproclc Family Court is affirmed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502962/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
I
These appeals involve two separate election cases in which the Navajo Board of Election Supervisors (Board) disqualified Ralph Bennett Jr. (Bennett) and Roy Begay (Begay), both candidates for delegate to the Navajo Nation Council. The Board found that they violated the 1990 Navajo Election Code (Election Code) and the 1984 Navajo Ethics in Government Law (Ethics Law) and disqualified them from running in the November 1994 Navajo Nation General Election. We consolidated the cases on appeal.
A
On August 20, 1992, the Ethics and Rules Committee (ERC) of the Navajo Nation Council found Bennett in violation of Section 3754(A) (2) of the Ethics *162Law because he filed his Economic Disclosure Statement late.1 The ERC fined Bennett $50.00, payable to the Navajo Nation. On May 9,1994, Bennett filed his declaration of candidacy for Navajo Nation Council delegate for the Red Lake/Sawmill Chapters. The declaration form asks whether the candidate had ever been convicted of any offense listed in Section 8.B.42 of the Election Code within the past five years. Bennett checked “no.”
On June 10, 1994, the Board cleared Bennett to run and he received the most votes in the August 9, 1994 Navajo Nation Primary Election.
On August 29, 1994, the Board decided not to certify Bennett for the general election after being notified by the ERC that he had failed to timely file his 1992 Economic Disclosure Statement. The Board removed Bennett, without notice and hearing, from the general election ballot for violating the Ethics Law and in turn Section 8.B.4 of the Election Code. Bennett appeals the Board’s decision to this Court.
B
Begay was sworn in as a council delegate for the Klagetoh/Wide Ruins Chapter on January 15, 1991. On January 29, 1993, the ERC ruled that Begay had violated Section 3753(1) (1) and (3) of the Ethics Law for receiving unauthorized compensation for official acts.3
The ERC recommended that the Navajo Nation Council publicly reprimand Begay pursuant to 2 N.T.C. § 3757(A) (1) (e), and order him to pay $291.28 in restitution to the Navajo Nation. ERC Resolution No. ERC-93-268. The recommendation was debated by the Navajo Nation Council, but it declined to impose any sanctions against Begay.
Begay filed his nominating petition on May 10,1994, seeking another term as council delegate for the Klagetoh/Wide Ruins Chapters. On June 17, 1994, the Board certified Begay’s candidacy for Navajo Nation Council delegate.
On August 20, 1994, the Ethics and Rules Office notified the Board that Begay had failed to disclose to the ERC his violation of Section 3753 of the Ethics Law and Section 8.B.4 of the Election Code. On August 31, 1994, the *163Board removed Begay, without notice and hearing, from the general election ballot for violating those laws.
II
The Board has discretion to apply election laws, but such discretion is limited and this Court can decide whether the Board acted within its discretion. Pioche v. Navajo Board of Election Supervisors, 6 Nav. R. 360, 364 (1991), citing Johnson v. June, 4 Nav. R. 79, 82 (1989). These limitations are imposed by due process and the statutory language of the Election Code and Ethics Law.
A
Both Bennett and Begay claim that the Board removed them from the general election ballot without affording them notice and an opportunity to be heard; thus, raising due process claims.
Begay claims that the Board’s ex parte decision not to certify him was based solely on the ERC’s finding that he violated the Ethics Law. Aside from the Board not giving him notice and an opportunity for hearing, he claims that the ERC has no power to disqualify him from seeking elected office in the first place, because its only job is to recommend sanctions to the Navajo Nation Council.
Bennett asserts a similar claim that Navajo law requires the Board to notify a candidate of its intent to disqualify him from the general election ballot and then, on request of the candidate, hold a hearing on the issue. He claims that the Board removed him from the ballot without providing the required notice and opportunity for hearing.
The Board contends that it can disqualify any candidate, as a matter of law, that the ERC finds in violation of the Ethics Law without providing notice and hearing. Both Bennett and Begay were found in violation of the Ethics Law by the ERC and the Board claims that is the only justification it needs to disqualify them.
Navajo due process requires notice and provides all parties to a dispute an opportunity to be heard. In re removal of Katenay, 6 Nav. R. 81 (1989); Mustache v. Navajo Board of Election Supervisors, 5 Nav. R. 115, 119 (1987). It requires adherence to the principles of justice and fair play, Yazzie v. Jumbo, 5 Nav. R. 75, 76 (1986), and the courts-must interpret it in a way that it protects civil liberties while preserving Navajo culture and self-government. Billie v. Abbott, 6 Nav. R. 66, 74 (1988). The Navajo people have an established custom of notifying all parties involved in a controversy and allowing them, and other interested parties, an opportunity to present and defend their positions. Begay v. Navajo Nation, 6 Nav. R. 20, 24 (1988). This Navajo common law is followed today by the Navajo people in resolving disputes.
The Board is held to these same standards of due process, because, as we said in Bennett v. Navajo Board of Election Supervisors, 6 Nav. R. 319, 325 (1990), the right to run for public office is a part of political liberty which makes it a due *164process right. The Board is thus obligated to provide Bennett and Begay with notice of its intent to remove them from the general election ballot and provide them with an opportunity for hearing on the proposed removal.
The purpose of a hearing before the Board is not to retry issues previously decided by a trial court or an administrative agency such as the ERC, Pioche v. Navajo Board of Election Supervisors, 6 Nav. R. 360 (1991), but to explain to the candidate the precise reason for the proposed action to be taken and to have the candidate respond. This is the nature of traditional Navajo due process and it is carried out with respect. It prevents government agencies, such as the Board, from making important decisions respecting a person’s interest in secrecy. It also promotes respect for the decision itself and the decision-making process.
The record shows that the Board did not provide these minimal due process protections to Bennett and Begay. The Board’s decision as to both of these candidates must therefore be reversed.
B
The final issue is whether the last sentence of Section 8.B.4 is valid and if it can be used to prevent a person who has been found in violation of the Ethics Law from seeking the office of Navajo Nation Council delegate.
Section 8.B.4 in its entirety reads as follows:
Must not have been convicted of any misdemeanor involving crimes of deceit, untruthfulness and dishonesty, including but not limited to extortion, embezzlement, bribery, perjury, forgery, fraud, misrepresentation, false pretense, theft, conversion, or misuse of Tribal funds and property, and crimes involving the welfare of children, child abuse, child neglect, aggravated assault and aggravated battery within the last five (5) years. Mast not have been found in violation by a trial court or the Ethics and Rules Committee of the Navajo Nation Council of the Navajo Ethics in government or Election Laws[.] (Italics added).
Bennett claims that the language quoted in italics above (language at issue) is not part of the 1990 Election Code as adopted by the Navajo Nation Council and therefore cannot bar him from the general election ballot. Begay claims that the Board exceeded its authority when it removed him from the ballot using the language at issue, because only the Navajo Nation Council, pursuant to 2 N.T.C. § 3756(A) (15) (a), has power to remove and bar a sitting council delegate from seeking reelection for five years. The Board’s only argument on the validity of the language at issue is that they “were approved” by the Navajo Nation Council.
Our review of the official minutes of the Navajo Nation Council session when the Election Code was adopted shows that the language at issue was not included as part of proposed Section 8.B.4.
The minutes indicate that during the debate, Council Delegate Benjamin Curley requested the delegates who “had the motion” to include “disqualifica*165tions [of candidates for president, vice-president and council delegate] based on the candidate’s filing of various information and pursuant to administrative sanctions of the Ethics in Government Law, because there are provisions which would apply in the Ethics in Government Law that could also be used for disqualification purposes.” Minutes of Navajo Nation Council Session dated April 6, 1990 at 33.
Council Delegate Daniel Tso (the delegate with the motion) responded that he “will accept [the] request to include references to the Ethics in Government Law as part of the qualifications in the President and other elected officials.” Id. at 42.
Council Delegate Elmer Milford, who seconded the motion, stated, “I’d like to speak to the issue of Section 8, there was a request made pertaining to 7 on page 18, I’d like to ask the moving party that he also include ‘violations of the Ethics and Election Law’ on that section right there. With that I will second the motion.” Id. at 43. The proposed Election Code shows that the only section 7 on page 18 is a section dealing with the qualifications for president and vice-president, not council delegate.
We find these comments by various delegates unclear as to what was actually proposed. It is clear that no delegate proposed to enact the actual language at issue, but it was nonetheless published by the Board as part of Section 8.B.4. Since the language at issue was neither in the Election Code as proposed to the Navajo Nation Council nor added during the debate on the Code, as a matter of Navajo law, it simply has no validity. The Board cannot use that language to disqualify candidates from elective office.
The decisions removing Bennett and Begay from the general election ballot are therefore reversed.
. Ralph Bennett was among twenty four employees of the Navajo Nation Division of Community Development who were found by the ERC to be in noneompliance with the Ethics Law for filing a late Economic Disclosure Statement for 1992. Ethics and Rules Committee Resolution No. ERC-93-346 (August 20, 1992).
. Section 8.B.4 of the Election Code fixes the qualifications for delegates to the Navajo Nation Council and lists as an offense an Ethics Law violation.
. Section 3753 (I)(l) and (3) state that:
(1) No public official or employee shall accept or receive any benefit, income, favor or other form of compensation for performing the official duties of their office or employment, beyond the amount or value which is authorized and received in their official capacity for performing such duties.
(3) No public official or employee, however, shall accept any benefit, income, favor or other form of compensation for the performance of the duties of any other office or employment not actually performed or for which such official or employee is not otherwise properly authorized or entitled to receive. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502963/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
This opinion decides the Navajo Nation’s motion to dismiss a criminal appeal for failure to timely file the notice of appeal.
I
Appellant, Cynthia Hunter, was convicted of four criminal offenses on March 15, 1995. A sentencing hearing was held and the trial judge signed the judgment on June 27, 1995. Hunter filed her notice of appeal and brief on July 31, 1995; which was thirty-four days after the date of judgment. The Supreme Court was closed from July 25-28,1995 due to the Navajo Nation Judicial Branch’s Annual Conference. Hunter’s thirtieth day for purposes of filing a notice of appeal fell on July 27, 1995, the day the Court was closed.
On August 24, 1995, the Navajo Nation filed a motion to dismiss the appeal arguing that the failure to file the notice of appeal and brief within thirty days from the date of judgment, as required by Rule 2(c), Navajo Rules of Appellate Procedure (NRAP), constituted a lack of jurisdiction. Hunter responded to the motion to dismiss, arguing that NRAP 5(a) permitted an extension of time to July 31, 1995, the date the Court reopened for business.
II
Under the NRAP and the Navajo Nation Code, the notice of appeal and brief must be filed with the Supreme Court within thirty calendar days of the date the judge signs the final judgment. 7 N.T.C. § 801(a) (1985); NRAP 2(c). The rules *167also provide that “[t]he last day of the period so computed is to be included unless it is a Saturday, Sunday, or court holiday, in which case the period shall extend to the end of the next business day which is not a Saturday, Sunday, or court holiday.” NRAP 5(a). Moreover, 7 N.T.C. § 801(a) is a jurisdictional statute and this Court is without jurisdiction unless an appeal is filed within the prescribed time period. Navajo Nation v. Devore, 5 Nav. R. 155 (1987) (citations omitted).
This Court has granted motions to dismiss for lack of jurisdiction due to an untimely filing of an appeal. See, e.g., Devore, 5 Nav. R. at 155 (notice of appeal filed 31 days after entry of judgment); The Navajo Tribe of Indians v. Yellowhorse, 5 Nav. R. 133 (1987) (notice of appeal filed 42 days after entry of judgment); Riverview Service Station v. Eddie, 5 Nav. R. 135 (1987) (no enlargement of time for filing by mail); Viva Rancho Motors, Inc. v. Tully, 5 Nav. R. 145 (1987) (the day the judge signs the judgment is the date used to compute appeal time); Whitehorse v. Navajo Nation, 4 Nav. R. 55 (1983) (notice of appeal filed 31 days after entry of judgment); Window Rock Mall, Ltd. v. Day IV, 3 Nav. R. 58 (1981) (no jurisdiction unless timely filing of an appeal).
The question before this Court is whether the filing of the notice of appeal, thirty-four days after the judgment was signed, is untimely because the Supreme Court was not in operation on the thirtieth day. The deadline for filing the notice of appeal in this case was on July 27, 1995, but on that date the Supreme Court office was closed by order of the Chief Justice and the entire Supreme Court staff was attending the Judicial Branch’s Annual Conference in Farmington, New Mexico. The Court did not reopen for business until July 31, 1995.
We hold that the closing of the Supreme Court office by order of the Chief Justice, such as for the Judicial Branch Annual Conference, is akin to a court holiday. The delayed filing in this case was not Hunter’s fault, but was because the Court staff was not available to attend to the routine, daily business of the Court, as is the case on a court holiday. Accordingly, it was proper for Hunter to file her notice of appeal the next business day the Court was open, which was Monday, July 31, 1995.
The motion to dismiss the appeal is denied. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502521/ | The election of John Upton, Jr., returned a member from the town of Lynnfield, was controverted by Josiah Newhall and others, on the ground, that at the meeting for the choice of a representative in said town, the vote of one person, who was not qualified, was received, and that of another, who was qualified, was rejected.
The following is the report of the committee on elections, in this case :—
“ The objections stated in the petition against the sitting member, are : — 1. That the vote of Osborn Richardson, who was not a legal voter in said town, was received by the selectmen; 2. That the vote of G. W. Hale, who was a legal voter in said town, was rejected by the selectmen.
It appeared in evidence, as set forth in the petition, that if G. W. Hale had been permitted to vote, there would have been no choice. It did not appear, that the rejection of Richardson’s vote would have produced the same effect, as for wlom he voted was not proved.
Having maturely considered the testimony, the committee are unanimously of opinion, that Richardson did not, by his absence for about two months, during the year 1832, lose his residence in the town of Lynnfield, and consequently that he was a legal voter in said town, on the second Monday of November last. Also, that the circumstances attending the stay of Hale, in the town of Lynnfield, are not such as to have given him a residence or domicil in said town, and that the selectmen were not obliged to receive the vote of said Hale, he having neglected to make application for the insertion of his name on the list of voters, at the time appointed by the selectmen, in accordance with the requisitions of the *293law.1 The committee are therefore of opinion, that the election is valid, and that John Upton, Jr., returned a member from said town of Lynnfield, is entitled to a seat.”
The report was agreed to.2
See Bacon v. Benchley, 2 Cush. 100.
54 J. H. 47, 96, 113. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502522/ | The election of Edward Wade, the last chosen of the three members returned from the town of Malden, was controverted
by John Sprague and others, on the ground, that the said town was not entitled, by the number of ratable polls therein, to send three representatives.3
The committee on elections reported as follows4:—
“ It appeared in evidence, and was admitted by the parties, that on the first day of May last, there was not a sufficient number of ratable polls, in the town of Malden, to entitle said town to three members in this house : but, that on the 12th day of November last, there was a sufficient number of ratable polls, in the town of Malden, to entitle said town to three members.
The petitioners contend, that, whereas the meaning of the words < ratable polls,’ in the constitution, must be established and defined by the tax act last passed ; and whereas the last tax act passed requires the assessors to make the valuation on all property, as it may be holden or owned, on the first day of May, and to tax all polls, who may be over the age of sixteen years, on the first day of May; that it is not competent for towns to take the ratable polls, as a basis of representation, at any other time, than on the first day of May.
The sitting member contends, that the constitution can only be rationally understood to refer to the number of ratable *294polls on the day on which the election takes place, and that the tax act is only to be regarded as defining what are the qualifications of a ratable poll, on the day of the election.
This construction of the constitution seems to be recognized by a part of the 7th section of the tax act, last passed, wherein provision is made for the taking of a ‘ new valuation,’ ‘ at any time of the year’ which towns ‘ may determine to be necessary, at a legal meeting, to be warned for that purpose.’
The committee are of opinion, that the number of representatives is to be determined by the number of ratable polls, on the day of election ; and accordingly report, that Edward Wade, the sitting member from the town of Malden, is entitled to a seat.”
The report was agreed to.1
Same, 49.
Same, 160.
54 J. H. 205. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502524/ | The election of Ebenezer II. Currier and Elias Bullard, members returned from the town of Holliston, was controverted by Martin Cutler and others,1 on the several grounds, stated in the following report; of the committee on elections2:
“ The petition alleges: 1. That the collector of said town neglected to comply with the law of March, 1833, requiring a return to the selectmen of persons paying taxes, to the end that a correct list of voters may be made.
The committee find that no such return was made by the collector, and are of opinion, that this neglect of the collector is insufficient to avoid the election.
The petition alleges: 2. That the selectmen neglected to hold a meeting one hour previous to the town meeting, for the revision of the list of voters, as required by law.
The committee find that the selectmen held a meeting for this purpose, a short time, probably half an hour, before the town meeting; and that on opening the meeting, proclamation was made for all legal voters, whose names were not already on the list, to come forward, that they might be placed there.
The committee are of opinion, that no irregularity upon this allegation was proved, sufficient to affect the election. The petition also alleges generally, that illegal voters voted.
The committee find that one illegal voter, namely: William Andrews, voted for the sitting member, Elias Bullard, and that said Andrews had resided in Holliston only since the 18th of October last.
The petition also alleges, that two votes bearing the name *298of Eben. H. Currier, which were not entirely severed when pin into the ballot box, were afterwards torn asunder by the sitting member, Elias Bullard, who is a selectman of said town of Holliston, in order that they might be counted separately.
The committee find that these votes, if attached to each other as alleged, could only have been connected at one end by about one eighth of an inch of uncut paper, they having been cut almost asunder in the usual manner, preparatory for their distribution. One witness, Benjamin Hoffman, swore that he saw the sitting member, Elias Bullard, tear those votes apart; that he heard the noise that is made by tearing paper, and said at the time to said Bullard, ‘ I think your votes stick together.’
It was proved in the defence, by a witness, John P. Jones, who swore that he heard the remark of Hoffman, aforesaid, and ‘ at that time his eyes were on said Bullard’s hands;’ that be did not see him tear the votes, as described by Hoffman; that the votes did not seem to be attached at the end, but seemed to adhere across each other; that if they had been so attached and torn as described by Hoffman, he should have seen it done.
This testimony was corroborated by another witness. Both these witnesses had as good opportunity to observe said Bul-lard’s movements as Hoffman had.
At the time when Hoffman swears he heard the noise occasioned by tearing these votes asunder, there probably were from one hundred to one hundred and fifty men in the town hall, and many of them in conversation, as is usual while votes are being counted. There was also a press of active persons near the town officers, waiting for votes, for re-distribution to their respective friends, in the event of no choice.
The committee cannot conceive that the tearing of one eighth of an inch of paper, under such circumstances, could have been audible; and are of opinion that the charge is un-sustained by the petitioners.
The testimony upon this charge has been given somewhat at length, from a sense of what is justly due to the reputation of the' *299sitting member, Bullard, who, in the opinion of the committee, should be fully acquitted of any improper or dishonorable conduct on this occasion.
On the last allegation, namely, ‘ that the sitting members were not elected by a majority of the legal votes polled at said election/ the committee find, that, in reference to the sitting member, Eben, II. Currier, this allegation is not proved, and report that said Carrier is entitled to bis seat.
Upon this last allegation, in reference to the sitting member, Elias Bullard, the committee find, that the town clerk made up his report from the return of the town officers, who sorted and counted the votes, and that his report stood as follows:— Bullard, 102; Littlefield, 83; scattering, 12: and that thereupon said Bullard was declared to be duly elected.
The committee also find, that after the meeting was dissolved, it was ascertained, that at least nine scattering votes which had been assorted by the town clerk, and pushed by him toward the centre of the table, were accidentally omitted in the report aforesaid, and that said report should have stood thus: Whole number of votes, 206; necessary for a choice, 104 ; Bullard had 102; Littlefield, 83; scattering, (12 counted and 9 omitted,) 21. Deducting the illegal vote of William Andrews, which was given for Bullard, it appears that there was a deficiency of three votes for the choice of Bullard.
The committee also find, that the error was accidental, and that the town officers are not obnoxious to the charge of an intentional dereliction from duty.
The committee accordingly report, that the supposed election of Elias Ballard is void, and that his seat ought to be declared vacated.”
On the fourteenth of March, this report was discharged from the orders of the day, and taken up for consideration. It was accepted so far as relates to the right of Ebenezer H. Currier to his seat, and, so far as it relates to the right of Elias Bullard, and declaring that he was not duly elected, was rejected. On motion of Mr. Metcalf, of Dedham, it was then *300voted, that the said Elias Bullard is duly elected a member of the house, and entitled to his seat therein.1
[The only part of the report in this case, which particularly affected the right of Mr. Bullard to his seat, was the statement of the committee, that there was an omission, on the part of the town officers, to include, in the whole number of votes given in, nine scattering votes, which, if counted, would have changed the majority. In the debate upon the question of the acceptance of the report, the evidence, upon which the committee founded their conclusion, that these nine votes were omitted, was very fully and minutely detailed by the chairman ; but, in the opinion of a great majority of the members, the facts disclosed, though they rendered it probable, that such was the case, were not sufficient to make it reasonably certain; and, upon that ground, the report, as to the seat of Mr. Bullard, was rejected.]
55 J. H. 32.
Same, 319.
55 J. H. 406. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502525/ | The election of Hiram Woodward, returned a member from Orange, being controverted by William Brooks and others, was investigated by the committee on elections, who reported thereon as follows ; —
“ That the petitioners allege, that the supposed election of said Woodward was void, because the town-meeting was warned by giving seven days’ notice ofily, when the by-laws of said town required a copy of all warrants for town-meetings to be posted up fourteen days prior to the time of meeting.
The time of notice being admitted by the sitting member, the petitioners then offered as evidence, to support their allegation, an abstract from the town records, in the words following: 4 Voted, that town-meetings be warned for the future, by posting up a copy of the warrant fourteen days, at the least, at the public meeting-house, except on special occasions, and then to be warned by the constable.’ Here the petitioners rested their case, no evidence being offered by them to shew what construction had been given by the town to the phraseology of the by-law.
On the part of the sitting member, it was contended, that less than fourteen days’ notice was sufficient on special occasions, and that the right to convene, for the election of a representative, on the fourth Monday of November, was such an occasion.
In support of this position, evidence from the town records was introduced to show, that the town had called meetings for important purposes, such as for the election of representative in the congress of the United States; which meetings had been holden on seven days’ notice, and such notice given in *302the same manner as the notice for the meeting at which the said Hiram Woodward was elected. It was further proved by the sitting member, that the meeting, on the twenty-fourth of November last, was unusually large, and that no objections, on the ground of want of notice, were made, until the balloting resulted in the election of the said Woodward.
From the above statement of facts, the committee are unanimously of the opinion, that the said Woodward was duly and legally elected a member of this house, and is entitled to his seat. All which is respectfully submitted.”
This report was made to the house, on the twentieth of January, and was read and accepted immediately.1
56 J. H. 84. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502526/ | Jonathan Thompson, Jr., and others, having called in question the election of John Wade, Stephen Nichols, and Oliver B. Cooledge, returned as members from the town of Woburn, the committee on elections, to whom the petition was referred, reported thereon as follows :—
“ After a long and minute investigation of the evidence, both for and against the different allegations, contained in the petition, they have come to the following conclusions. The different charges made by the petitioners, to invalidate the election of the members from WToburn, are recited in the order in which they were considered by the committee, and their opinion follows each allegation.
1st Allegation. ‘ One citizen was seen to vote twice, at the first balloting for a representative, and his vote, the last time, was received in an improper place, and out of the order of the *303check list, by Captain Stephen Nichols, one of the presiding selectmen, and one of the representatives' returned, and was by him conveyed into the ballot box, without any examination of the check list.’
Tiie evidence in support of this allegation, did not satisfy the committee that the selectmen were aware of the fact, that an individual had voted twice; and even that fact of itself was left in doubt, for the evidence in regard to the deposit of different ballots, by the same person, was, in some particulars, contradictory.
2d Allegation. ‘ While the first ballot for a representative was counting, the chairman of the selectmen, (Col. John Wade,) who was the first representative returned, was seen to take from the ballots cast, two papers containing names, which he afterwards put into his pocket.’
This allegation was substantially proved, but your committee were of the opinion, that the two pieces of paper were withdrawn by Col. Wade upon the ground that they were not ballots, and that they had been deposited by mistake. They were openly taken from the box, and the evidence clearly showed that there was no intent to do wrong, on the part of the presiding officer.
3d Allegation. ‘ During a moment of excitement, there was a press towards the selectmen’s desk, and several persons were seen to raise their hands, and to drop votes into the ballot box on the table, of all which no notice appeared to be taken by the presiding officers, nor were any names checked.’
The evidence sustained this allegation, but the committee believe the charge to be immaterial, because no illegal voting was shown to have taken place.
4th Allegation. ‘ That the votes for a first representative were erroneously counted by Capt. Stephen Nichols, there being more counted for John Wade than he actually received.’
The evidence introduced to support this charge was not, in the opinion of the committee, sufficient to authorize them to consider the allegation as proved,
5th Allegation. ( That while the ballots were counting for *304the first representative, certain papers, having every appearance of ballots, were swept from the table, by John Wade, Esq., at that time one of the candidates.’
The fifth allegation was so far sustained by the evidence, as to shew, that papers were swept from the table, but it did not appear to the committee, that those papers were ballots, although the witnesses testified that they had that appearance.
6th Allegation. ‘ The chairman of the selectmen declared the whole number of votes, on the first ballot, to be 320, of which 162 were for himself, and thereupon he declared himself to be elected. By the record, made by the clerk, it appears, that the whole number was 320, that John. Wade had 162, John Cummings, 124, Joseph Gardner, 20, Stephen Nichols, 7, Benjamin Wyman, 4, and scattering, 3; which record is not true, because Benjamin Wyman had thirteen votes, instead of four.’
This allegation was fully supported by the evidence. Thirteen votes were proved to have been deposited in the ballot-box for Benjamin Wyman, which votes, with the exception of four, were, fay some error or accident, omitted in the statement of the result of the ballot. The evidence on this point was voluminous, and the committee could not insert even an abstract of it, without extending their report to a most undesirable length. They will, however, briefly state, that after the ballot box was turned, a portion of the votes were counted by Charles Carter, Esq., one of the selectmen. Among those ballots, four were found to contain the name of Benjamin Wyman. The residue of the votes were sorted by Col. Wade and Capt. Nichols. All the votes, however, for Col. Wade, were counted by Capt. Nichols, and it appeared by the evidence that Col. Wade took no part in counting any of the ballots. As the number for each candidate was ascertained, the amount was given to Oliver B. Coolidge, the town clerk, to be recorded; but in stating the result of each, to the town clerk, the tone of voice was so low that the number could not be heard by the spectators. The committee will here remark, in passing over this part of the case, that the town clerk is *305one of the sitting members, embraced in the petition. And although it appeared by the evidence, that he wrote down the number of ballots each candidate had received, yet he did not assist, either in counting or assorting the votes; and it was equally clear, that he did not cause, or in any way partake of, the error that occurred. After the computation had been made, the result was declared by Col. Wade, as contained in the above allegation. The loss of the nine votes for Benjamin Wyman must have happened, either during the process of assorting by Col. Wade, or in the act of counting by Capt. Nichols: or else, they were lost in a way to which the evidence furnishes no dew. As there was no testimony to shew fraud on the part of Col. Wade or Capt. Nichols, and as they were in presence of, and almost in contact with, an hundred watchful opponents, it would seem, that any attempt on their part to frustrate the will of the majority, by an act of unfairness. would have been, under the circumstances of this case, impossible. The nine votes given for Benjamin Wyman were, nevertheless, lost. Had they been counted, they would have changed the majority. The whole number would have been 329: necessary to a choice, 165; and John Wade having received only 162, would not have been elected. The committee, therefore, are of the opinion, that the omission of the nine votes abovementioned is fatal to the validity of the election of John Wade.
7th Allegation. ‘ The selectmen were not sworn until some days after the votes were received, sorted, counted, declared, and recorded.’
The fact asserted in this allegation was admitted by the counsel for the sitting members. They contended, however, that the omission did not affect this election; 1st, upon the ground, that no oath was required of selectmen, to qualify them to preside at the election of representatives to the state legislature; 2d, that if the stat. 1833, c. 141, did require the oath, then the omission might render the selectmen liable to a penalty, but could not be construed to make void the election. These questions depend upon the construction of the act of *306the 19th of March, 1833. The first section of that act makes it the duty of the selectmen, ‘to make and seal up a separate list of the persons voted for, as governor, lieutenant-governor, councillors and senators, and representatives in the congress of the. United States, and transmit the same to the secretary of the common wealth or to the sheriffs of their respective counties.’
The second section is in the words following: ‘Bo it further enacted, that the selectmen of the several towns and districts shall hereafter, before they enter upon the execution of their official duties, take an oath or affirmation, before a justice of the peace, or the clerk of the town or district in which they are selectmen, faithfully and impartially’ to discharge those duties, respecting all elections and the returns thereof, and 'that a certificate of such oath or affirmation shall be recorded in the town or district records.’
On the part of the sitting members, a most elaborate and ingenious argument was made, to shew, that the words ‘those duties/ in the second section of the above recited, act, referred to the election of the different officers, recited in the first section of the same statute ; the votes for whom they are required in separate lists‘to make and seal up/ and transmit to the secretary of state; and that inasmuch as there was no mention of members of the house of representatives of tiffs state in that section of the act of 1833, it was manifestly not the intent of the legislature to require any oath of the selectmen, to qualify them to preside at the election of the last mentioned members.
To this argument, the committee believe, that a brief and most conclusive answer is to be found in the language of the statute itself. And the question is to be settled by the construction of that statute, upon the ordinary and well known rules, that not only govern the construction of other statutes, but of rules that do also govern the construction of the language in which they are couched. The question is, what is the antecedent to the words ‘ those duties/ in the second section of the act oí 1833 ! And the answer must be ‘ their official duties!’ To make the duties of sealing up and transmitting .the. votes for governor, lieutenant-governor, &c., men*307tioned in the first section of the act, the antecedent, would require a strained construction of the language of the statute, and, clearly, at the expense of the true and obvious intent of the legislature. Further than this. Such a construction would require a restricted meaning to be given to the words, ‘ all elections and the returns thereof,’ and this could not be done, without violating a well known rule, applied to the construction of statutes.
The committee, therefore, have come to the conclusion, that selectmen are required by law to be sworn, before they proceed to discharge their duties iu relation to the election of representatives to this house.
The above conclusion brings us to the consideration of the second question, viz: Does the neglect of the selectmen, to take the oath prescribed by the statute of 1833, render the election void.
In a government like ours, the fundamental principle should never be lost sight of, even for a moment. The will of the majority must govern. To ensure this, the people, through their authorized agents, have enacted laws, admirably designed to secure the desired end; and their jealous vigilance cannot be too much commended; for, upon the purity of the ballot box, depends the sovereignty of the people. Among other grounds, which the legislature have adopted to protect this important right, they have seen fit to require the sanction of an oath from those officers, who are. about to receive, sort, and count the ballots of the people. This oath, too, is required by an imperative statute, which says that the selectmen shall be sworn, before they enter upon their official duties in relation to ‘ ail elections and the returns thereof.’ If this provision was intended as a guard to ensure the purity of an election, why should it be withdrawn ? In all eases, this house has the power, constitutionally, to set asicfe the provisions of law, however positive, and admit, the person returned to a seat, even though every statutory provision was violated in his election. Would it be wise to adopt such a course ? The answer cannot be otherwise than in the negative. And if the aggregate *308of checks ought not to be set aside, why should they be dispensed with individually ? As yet the sanction of an oath has always been required, and neither reason nor authority has been shown, to set aside this solemn provision of the law. It is a matter of great importance to the community, that this house should settle the questions now presented upon sound principles, in order that their decision may hereafter be cited as a well established precedent. In view of such a decision, the committee have gone further into the subject, perhaps, than was necessary. And yet, they have left many considerations untouched, that have had great weight in bringing their minds to the conclusion that follows, viz.: That the omission of the oath is fatal to the validity of the election, and that Col. John Wade, Capt. Stephen Nichols, and Oliver B. Coolidge, Esq, returned as members of this house, from the town of Woburn, are not by law entitled to their seats.”
The foregoing report was agreed to, after a discussion thereof, on two several days, by a vote of 318 to 88, “ as to the seventh allegation therein, and the conclusion of the committee of elections thereupon, that the said election is voidand as to the residue, it was indefinitely postponed, without a division.1
The members were allowed their pay up to and including the day of the acceptance of the report.2
A precept was afterwards issued to Woburn, for the election of members, in the place of those, whose election was thus declared void, and the same gentlemen were again returned and took their seats.
56 J. H. 201.
Same, 201. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502527/ | A committee, consisting of one member from each county, having been appointed to consider “ so much of the governor’s speech as relates to amendments of the constitution, or *309establishing some legal provisions by which the house of representatives may be reduced,” the committee voted, that the chairman be instructed to desire the attorney general to attend the committee, and submit to them his opinion on such questions, concerning the matter before them, as the committee might propose.
In pursuance of this vote, Mr. Attorney General Austin addressed the following communication to the committee;—
“ Gentlemen, — The questions which you did me the honor to propose to me resolve themselves substantially into this, viz:—
Whether the term ‘ratable polls,’ in the constitution, c. 1, sec. 3, art. 2, is forever to distinguish the same classes of persons, who, at the adoption of the constitution, were designated by and included within it; or may from time to time, by the legislature, be made to include more or fewer classes than it originally included ? A case in point may explain the nature of the question.
At the adoption of the constitution, certain male citizens between the ages of 16 and 21 years were ratable polls. Are citizens of like age always to be considered ratable polls within the meaning of the constitution above cited ?
A true answer to the questions you have proposed would determine what power the legislature possesses, to alter the aggregate representation in the popular branch ; and because by one mode of considering these questions, the legislature would possess very considerable power to augment or diminish it, there seems, at first view, to be some reason against such a consideration of the subject.
The object of the constitution was to establish a permanent basis for a representation of citizens, and it assumed as a standard of measure ratable polls in municipal corporations.
But if this standard of measure may be varied, and especially if the legislature may vary it, there is nothing permanent in the rule. The same municipal corporation, having in two successive years the same number of inhabitants, may, by a change of the standard of measure, be entitled to larger, or *310confined to a smaller number of representatives, in the one year than in the other.
Such a power in the legislature has been sometimes supposed inconsistent with the spirit of the constitution, and therefore that no construction of the constitution, which should authorize it, could be correct.
But it should be remarked, that no change in the standard can alter the rule of proportion, which will continue to be the same that it now is, in relation to every town in the commonwealth, whether the whole number of representatives be many or few.
It may also be proper to question the soundness of any argument, drawn merely from the supposed inconvenience of allowing to the whole legislature a power over the number of representatives in the popular branch. Legislators are themselves the people. They are so directly, intimately and entirely a portion of the people, that the last danger ever to be apprehended, to the liberties and freedom of the commonwealth, is that which will arise from any exercise of their authority.
It may also be questioned, whether a standard, liable to be changed, from time to time, by the intelligence and judgment of the whole government, so as to meet the changing wants and convenience of a growing and vigorous people, does not better comport with their prosperity and happiness, than one, which, established in the infancy of the commonwealth, might refuse to bend its iron rule to the increasing stature of the state.
But whatever speculative opinion might be entertained on this question, it seems to me to be settled by authority, from which I do not feel at liberty to appeal. I refer to the opinion of the supreme judicial court on an application made to the judges, under an order of the house of representatives of the 6th February, 1811, reported in Mass. Term Reports, vol. 7, page 533, and inserted in the Reports of Contested Elections in the house of representatives, page 107. See ante, 117.
To understand the application of that opinion to the present *311questions, I must ask your indulgence to a preliminary remark.
The term : ratable polls’ in the constitution has at different times been the subject of difficulty in two respects. First, in understanding what was its precise extent and meaning; and second, that being settled, whether a particular person, or class of persons, came within the definition. For example under the first head, whether it included students, demy men, soldiers, aliens, &e., and under the second head, whether particular persons, borne on the list as ratable polls, were students, clergymen, See., within the assumed definition.
In process of time, many of the doubts arising in this respect have been removed, and definitions settled, and it now seems well agreed, that the term ‘ratable polls,’ designates all those inhabitants who are made liable by law to be assessed to the payment of a poll tax, whether they be so assessed or not; or whether, being assessed, they pay or do not pay.
In one sense, every inhabitant is liable to be assessed; that is, the legislature may enact that his poll shall be taxed, and therefore, whether they do so enact or not, he is exposed to the liability of the enactment, and may be considered taxable or ratable. But this is clearly not the sense in which the terra is used in the constitution, because in this sense it would be equivalent to the whole population, and the term ‘ratable polls’ would be synonymous with all inhabitants, or at least all male inhabitants, which has never been pretended. The term is used in a more restricted sense, and means all those persons who under the operation of a tax act are made liable to taxation, per capita. The fact of being liable to the action of the assessors, under a law that is in force, not the'fact of being liable to be the subjects of a law that is not made, becomes a criterion for determining whether a person is or is not a ratable poll.
This is settled by the uniform practice of the government. Minors over sixteen have always been included in the tax acts, as persons to be rated, and considered of course ratable polls. Minors, under sixteen, have never been included in the tax *312acts, and have for that reason alone never been considered ratable polls. But it cannot be doubted that the legislature might include the latter in the next tax act, or direct that minors over fifteen years, or fourteen years, or any other period, in its discretion, should be included, and the persons thus included must thereafter be deemed and taken to be ratable polls.
Whether a person is a ratable poll does not depend on the question, whether the legislature may rate him, but whether the legislature has put him among persons to be rated; and it does not depend upon his being rated by the assessors or other persons, intrusted to carry into operation the direction of the legislature, because it is his liability under the order of the law, and not his compliance with that liability, that ascertains his character as a ratable poll.
The tax acts have uniformly included all males above the age of sixteen years as ratable polls.
But the provision extending to all males above sixteen years included aliens living within the commonwealth.
If, therefore, aliens, by force of that provision, became ratable polls, then the town in which they reside has its right of representation increased by such aliens; and for every two hundred and twenty-five ratable aliens, such town acquires a corporate right to one additional representative.
It became, therefore, a question whether aliens could be ratable polls within the meaning of the constitution.
That question was proposed to the judges of the supreme judicial court, as before mentioned, and the judges replied, that the polls of aliens may, within the true intent and meaning of the constitution, be ratable polls, when and so long as they are made liable by any legislative act to be rated to public taxes.
The effect of this answer is obviously to say, that when they are not made liable by any legislative act to be rated to public taxes, then and thenceforward they are not ratable polls.
The judges add: ‘ The polls of male aliens above the age of sixteen years are now by law liable to be rated to public *313taxes, and now are ratable polls within the intent and meaning of the constitution.
This plainly implies that only because they were then (in 1811) rated, and not because they had been ratable in 1780, they were to be considered ratable polls within the meaning of the constitution.
The answer, therefore, to the question proposed, on the authority of this judgment and opinion of the supreme judicial tribunal of the state is, that aliens may or may not be rated, and may or may not be ratable polls, as the legislature in its pleasure may enact; and as to them, the term ratable polls in the constitution does not forever distinguish the same classes of persons, who, at the adoption of the constitution, were designated by and included within it.
Placing so much reliance on this opinion of the court, which, though it wants the power of a judgment in due course of law, is not to be considered extra-judicial, it may be proper for me to add some of the circumstances under which it was given; and the more so as it is known to all those, who remember the agitation of that time, that it did not meet with universal approbation, and that the report of the committee of elections of that year entirely dissented from its positions.
The opinion is pronounced on three abstract questions propounded to the judges by the house of representatives, but the circumstances that called for the opinion are not immaterial to the case.
They are substantially as follows: The town of Boston returned forty-two representati ves. The assessors of that town certified, that there were 9,557 ratable polls in the town, which would give the town a right to 42 representatives and leave a fraction of 182 polls unrepresented. But it is obvious, that if there were included in the aggregate of ratable polls 183 aliens, and if aliens were not ratable polls, Boston had exceeded its right of representation, and by the course of decisions, as then understood, the seats of the entire number would be thereby vacated.
A petition against the election was presented, and the *314committee to whom it Was référredi reported, that the aggregate number of polls included 706 aliens. It is plain, therefore, that the right of the, hitting members 'depended on the question whether the town, in ascertaining the number of ratable polls, in order to determine the number of representatives it was, entitled to send, could constitutionally include, in the number of ratable polls, the polls of aliens residing in the town and by law ratable to public taxes, and predicate a representation thereon which would be a-constitutional representation ?
Other matters were involved in the controversy on the petition, but a negative answer to this question would be fatal to the sitting members’ claims.
Although the committee of elections presented a report differing in its doctrines from the law laid down by the court, no action of the house was had upon it; but what is important no discrimination from that time to the present has been made between the ratable polls of aliens and natives.
Another fact is of some consequence. A bill was introduced to ‘ establish the legal qualifications necessary to constitute a ratable poll within this commonwealth,’ but did not pass into a law. No record preserves the reasons for its being negatived, but many persons can well remember, that the opinion of the supreme judicial court was admitted to settle the question in this way, viz : Thát the tax act would by the constitution determine who were ratable polls, inasmuch as all who were by such act liable to be rated were ratable polls, and that all who were not made by such act liable to be rated were not ratable polls; and that there was no mode under the constitution, by which an alien should be made liable to assessment, that would not give the town in which he lived a right to count him as a ratable poll.
The same desire which has since prevailed, to diminish the representation, then prevailed. The house returned that year contained 632 members at the election of its clerk.
But the whole argument and opinion in relation to aliens are just as true in their application to any other classes of persons, who at any time have been or now are ratable polls. *3154il other citizen*, who are now included in the tax act, (that is, the last lax act) jare, ratable polls, and they, and they only, who shall be included in the next tax act, will thereafter, until a subsequent one is made, be the ratable polls on which representation may be predicated.
Aliens arc only one class. Native citizens under sixteen years arc' another class. Native citizens above sixteen and under twenty-one are another
There is some analogy between the political rights of native citizens who are minors, and aliens of any. age. Neither class has the personal right to vote, but the number swells the population, and thereby increases the rights of the legal voters where those rights depend on population, as in congressional districts; their property increases the proportion of the public tax paid in the districts where they live, and operates in the apportionment of senators. If, therefore, the legislature, by a provision in the tax act, may make aliens ratable polls or not at their pleasure, whereby a political effect is produced, there seems as sound reason for extending the authority to any and all other classes of citizens, minors or adults, who constitute the subjects of taxation.
Supposing the legislature has such authority, the inquiry next presents itself, how may it be used to effect any considerable reduction in the number of representatives ?
No census has been taken, by which the number of polls in the commonwealth above sixteen years of age, and under twenty-one, can be precisely ascertained.
But an approximation may be made to the aggregate of this class, from the United States census of 1830, by which it appears that the white males between fifteen and twenty are 32,864. This column in the census begins a year too soon and ends a year too soon. But probably the male polls between fifteen and sixteen do not differ very much from those between twenty and twenty-one. Supposing the latter class to be the smaller, and that the ratable minor polls numbered in 1830 as many as 32,500, they are not far from 36,000 at the present time. If these are represented, or add to the representation in the house, they give 154 representatives.
*316By the same census the number of polls of fifty years and upwards in 1830 was 32.766, and is not less than 35,000 at the present time. These give 151 representatives.
If therefore the minor polls hitherto rated or ratable, and the adult polls over fifty years hitherto ratable, should cease to be ratable, the whole number of representatives might be reduced by 304. There would then remain, as appears by the same census, 126,766 polls, now amounting to 139,432, entitling the towns to a representation of not less than 619 members.
It is not possible, from the data thus given, to be precisely accurate. The unrepresented fractions in many towns would have some effect on the total, and the right of one representative, on the first one hundred and fifty polls, would also change the aggregate, and the two items probably about balance each other.
The actual result might, however, be rendered certain, by directing a census to be taken under the authority of the commonwealth ; and indeed, by the examination of the returns from each town, in the last United States census, tables more precise might be constructed ; but this general view sufficiently well shows the operation of the principle. It will be observed that I have not noticed any exceptions in the class of ratable polls, because such exceptions influence the result too minutely to be taken into this general consideration. No notice is taken, in the foregoing estimate, of the colored population, chiefly because the number is not supposed to be large enough to require it, and because the tables of the census are not prepared with such exactness in reference to them, as to give any satisfactory result. The nearest approximation to be made by the census for 1830 would give for the present time about three thousand colored males in the state over sixteen years of age. But a much larger proportion of this class than the others would come under the exceptions which have already been established by the house of representatives, excluding state and town paupers from the lists of ratable polls.1
Nor is it material to attend to aliens as a distinct class. No *317account being taken of the age of aliens, separate from native citizens, the number of the alien polls over sixteen, cannot be ascertained. But the census makes a return of 8,787 foreigners not naturalized, which, if now increased to 10,000, might possibly give 2,500 polls over sixteen years of age. But of these, so many are paupers, that considerable deduction beyond the proportion of their numbers to the whole population must be made.
A law excluding aliens and colored persons from the ratable polls of the state would not diminish the aggregate representation more than from twelve to twenty.
It is plain that any arrangement of the kind under contemplation can only be a temporary remedy for the supposed inconvenience.
The commonwealth, in the rapidity of its growth, under the influence of rational liberty and wise laws, will soon contain an active and busy population, that will give to the classes of ratable polls, then remaining, numbers and power equal to what are possessed by all who are now included in that description.
It will be seen that the progressive increase of population, on which the present number of ratable polls is estimated, is wholly conjectural. The tables of the census give no data for exact calculation, but an estimate formed from the census places the decennial increase at 18.6 per cent., which I presume to be correct.
It is exact enough for the present purpose, to consider this increase as producing the same quantities in the same time, although it is in fact in a geometrical ratio. And it is well enough to take round numbers.
The calculatipn for representatives is made on the higher ratio, viz: 225 polls for one representative. It is not possible, without devoting more time than could now be bestowed on the subject, and causing more delay than the committee might deem proper, to ascertain the application of the principle in point of fact to each town, or even to see how many towns would, by the adoption of it, lose the right of representation. *318Nothing but a rough outline is intended to be exhibited. If, on further examination, it should be thought that the principle might be of any practical utility, it would be easy, with proper care, to trace its operation in detail, and ascertain its precise bearing on every town in the commonwealth.
By the rule.of calculation here assumed, the city of Boston has now thirteen representatives for its minor polls, and much for its polls over fifty years; in all twenty representatives, os within a fraction of one third of its present number.
Should that result be deemed a fair specimen of the effee| of the principle through the state, the number of representa* lives could be thereby reduced nearly one third, and it would take, for its progressively increasing population to restore the aggregate to its present numbers, about twenty years.
.But as the assumed mode'of calculation gives to the people 923 representatives, as the house is now constituted, which is more than its supposed constitutional character, it is apparent that the application of the whole numbers, in parts, to the? several' towns, is liable to some error, for which allowance must be made.
Nothing more is intended in the illustration which has, been attempted, than to indicate the tendency of a principle, which the legislature has power to adopt.
Having tiras presented a view of the power of the legisla-, ture, which I think constitutional, and exhibited the probable effect of it, if carried into practice, it is proper for me, in complying with tin* commands of the honorable committee, to attend to some of the objections, considered as the strongest} which have been urged against its exercise.
There is supposed to be an objection,do legislative action on this subjed, to any great-extent, arising ftorn,, the-third article of the amendments to the constitution made by the convention of 1820. ;> " '
This objection may be thus stated. By that article every male citizen, of twenty-one years of age, becomes entitled to vote, in-ease of a residence as therein provided; and provided also, that he ‘ shall have paid, by himself or his parent, master *319or guardian, any slate or county lax which shall, within two years next preceding such election, have been assessed upon him, in any town or district of this commonwealth! If be be not assessed he cannot pay; and if he be not ratable by law, he cannot be assessed. When, th< n tore, he comes to be twenty-one years of age, he cannot hau> paid any tax, and of course cannot vote. His right of voting maj thus bo postponed after he is twenty-one years oí age, without his com sent.
The whole force of this objection seems to me to bear on the expediency of any action by the legislature, and not upon its constitutional power. The legislature would guard, will) great care, the privilege of voting; and especially the privilege secured to the young men, on whose exertions and patriotism so much reliance must be placed for the preservation of our republican institutions, If the objection rests only on expediency, it would not bo diilieitlt to arrange the details of a plan by which this supposed evil might be obviated.
The objection leaves ontouehed the operation of the supposed power of the legislature on mi now over sixteen, and. tinder nineteen, or perhaps even twenty years of age.
But the same-objection is made;to attach- to any action of the legislature-at the other end of the line. And it must be tM>neededrthat if the legislature prevented persons over fifty (for example) from being rated to a poll tax, all such persons, Who had no property, would, in two years, Ay operation of the constitution, be excluded from the right of toting in the public elections.
How numerous such a class would be, cannot now bo known; probably very small. It would certainly be a subject of regret, if a single citizen should be deprived of the* elective franchise. But in most operations of a political character, the good of the whole is attended-with partial inconveniences. There does not seem tobe any fundamental principle violated. Taxation and representation should go together, and he who pays nothing, and is yet protected by the taws, cannot complain because he is not authorized to make them.
*320Another objection, which is thought by those who urge it to be more formidable in its character, may be thus stated.
By the spirit of the constitution, every corporate town is entitled to at least one representative. All towns which were incorporated at the date of the constitution, whatever may be their number of ratable polls, are secured that right forever. And as 150 ratable polls were required for the first representative, it is expressly provided that ‘no place shall be incorporated, with the privilege of electing a representative, unless there are within the same 150 polls.’ Many towns have been since incorporated, and enjoy the privilege; but if the character of the ratable polls is changed, by excluding minors and adults, as above suggested, these towns or some of them would no longer contain 150 ratable polls. Therefore, unless they lose their risrht of representation, the calculation in regard to a diminution of the house would be erroneous, and if they should lose it, a portion of the people, and certain municipal corporations, would be disfranchised.
That one or other of these consequences would follow, seems pretty clear; to what extent is not very certain. That either consequence is ail evil, must be admitted; but it is probable that no curtailment of the present number of representatives can be devised by human ingenuity, without being attended with partial inconvenience as a compensation for the general good.
The great objects to be attained are to preserve the corporate right of towns, to maintain an equality between population and representation, and to limit the aggregate number of representatives ; and these are in their own nature so conflicting and contrarient, that they cannot be perfectly reconciled. If it be admitted that no present right can be abandoned, in furtherance of the general object, all attempt at reduction must be abandoned. The main object cannot be accomplished unless somebody gives way.
I have no other answer to make to the case above stated than that it is no objection to the constitutional right of legis*321lative action, whatever it may be to the expediency of exercising it.
When a new town is erected out of an old one, no privilege of electing a representative is granted by its act of incorporation. That privilege is derived from the constitution, and the ability of the new town to comply with the requirements of the constitution in such case provided. If the new town has 375 polls, it elects two representatives, and if it has polls enough, it elects three or more. The restraint is imposed on the legislature not to erect the town, unless at the time of the application it contains 150 ratable polls.
The question is yet to be settled, whether if a town, incorporated after the adoption of the constitution, falls into decay, and has at the time of a municipal election less than 150 ratable polls, it may continue to send a representative to the general court. The privilege in perpetuity is conferred only on those towns which existed in 1780.
My own opinion is that such town would lose its right. Certainly if it had chosen two representatives, and so far fell into decay as to have less than 375 ratable polls, it could choose but one. If the case of Danvers, (ante, 49,) and the case of Malden, (ante, 293,) in the reports of controverted elections, affirm a general principle, this is now the settled law; for in those cases it is resolved that the extent of the right of representation, as given to the towns and districts of the commonwealth by the constitution thereof, is to be regulated by the number of ratable polls, actually existing in the towns and districts, to be represented, at the time of any election.
The only answer to the authority of these cases is, that the diminution is made in one instance by death, removal, or decay; in the other, by a legislative disqualification. In both the fact exists, namely, a want of a sufficient number of legal ratable polls; and it is this fact, and not the cause of it, by which the municipal right of the corporation is to be ascertained.
On the whole, therefore, I beg leave very respectfully to *322submit to the honorable committee, that, according to the best opinion I can form, the elaborate and well argued judgment of the supreme judicial court, above referred to, affirms and maintains the proposition, that the legislature may by law establish what shall or shall not be a ratable poll, by providing in the tax act who shall or shall not be liable to be rated ; and that when this is done by such legislative act, the representation in the house of representatives must be predicated upon the number of such, ratable polls, according to the ratio which the constitution has established; and that any inconvenience which might result to individuals or corporations by the exercise of such legislative power is no reason against the constitutional right, but addresses itself to the sound discretion of the legislature, to act or not act, as in their wisdom the general interests of the commonwealth may require in the premises.
JAMES T. AUSTIN,
Attorney General.
February 10th, 1835.
This is a mere conjecture. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502528/ | The election of Levi L. Smith, returned a member from this town, was controverted by Benjamin Wheeler, Jr. and others, in a petition upon which the committee on elections made the following report:—
“ The said petition sets forth, that, at a legal meeting of the inhabitants of said town for the choice of representatives, held on the ninth day of November last, the said Léví L. Smith was declared chosen, and that he has been returned, as representative of said town.
The petitioners allege, that said Smith was not legally chosen a representative, “ because his election was procured by the votes of persons who were not qualified to vote, as the constitution provides; that the names of Luther Brown, Spellman Curtis, Asher Daniels, Gideon Granger, Salmon Hall, William Jackway, Thomas King, Ezra Olds, Jonathan Olds, Jonathan Olds, Jr., Zenas Rhoades 2d, Theophilus Smith, John Stannard, Joseph Stannard, Aaron Stevens and Newman Wheeler, were placed on the list of voters by the selectmen of said town ; and that they, the said Brown, and the others above named, neither of whom had paid, by himself, or by his parent, master, or guardian, any state or county tax, which had, within two years next preceding said election been assessed on him, in any town or district of this commonwealth, and neither of whom was exempted by law from taxation, were permitted to vote, and did vote, at said meeting in the choice of representative.”
*324The petitioners declared, that their interposition was not made from feelings adverse to the sitting member, — whom they consider an honest man and a respectable and worthy citizen, — but from a desire that the constitution and law's in relation to elections should be regarded and obeyed; and they concluded by praying, “ that the election of said Smith may be declared void, and his seat in the house vacated.”
Sundry depositions were offered, and, — it not appearing that the sitting member had been notified of the intent to take them, or been present thereat, — were rejected by the committee.
The evidence in the case, received by the committee, is contained in the depositions of Joseph W. Howe, Harlow S. Underwood, and Salmon G. Keyes, and is as follows:—
Joseph W. Howe is town clerk of New Marlborough, and testifies, that at a legal meeting of said town, held on the ninth day of November last, for the choice of governor, &c., Levi L. Smith was declared chosen as a representative to represent said town in the present general court; that the votes at said meeting were : For Levi L. Smith, 179; Henry Wheeler, 150; scattering, 15; and that the said Luther Brown and the fifteen others before named, together with one Rosewell Cove, voted at said meeting.
Harlow S. Underwood testifies, that he was chosen collector of taxes for the town of New Marlborough, on the third of March, 1834, that the assessors of said town committed to him, for collection, the tax list for town, school, and county tax, dated September 12th, 1834; and that the persons above named, to wit, Luther Brown and others, including llosewcll Cove, have not paid any tax to him. This deposition was taken January 2d, 1836.
Salmon G. Keyes testifies, that he was chosen collector of taxes for the town of New Marlborough, in March, 1835, that the assessors of said town committed to him for collection, lists of town, school, and county taxes, dated October 2d, 1835; and that Luther Brown and the others above named, including Ilosewell Cove, had not paid him previously to the town-meeting in November last, for the choice of governor, &c., in any way, any tax, or part of a tax.
The foregoing is all the evidence received by the committee.
The petitioners allege the disqualifications of the said Luther Brown and others, who are proved to have voted in the election of the returned member, to consist in the omission to pay the tax required by law, as one of the requisites to a legal vote.
The constitution (Amendments, art. Ill) requires, as prerequisite to the right to vote in the election of representative, *325the payment of any state or county tax, which shall, within two years next preceding the election, have been assessed upon the voter, in any town or district of the commonwealth.
County taxes are annually granted by a resolve of the legislature. The resolve for county taxes for the year 1833 was passed January 25th of that year. The committee find no law, requiring county commissioners to issue their warrants for assessing county taxes, within any prescribed time or portion of the year. The evidence shows, that the said supposed illegal voters had not paid to the collectors of New Marlborough any county tax assessed in the year 1834, or in 1835, previously to the ninth of November. But it does not appear, that no county tax was assessed between the ninth of November, 1833, and March, 1834 ; and, inasmuch as the petitioners are bound to produce satisfactory evidence of disqualification, and the evidence produced does not cover the whole term of two years next preceding the election, the committee think the sitting member is entitled to the presumption of law, that the persons who were permitted to vote in the elections were legally qualified.
Wherefore the committee are of opinion, and do report, that the right of Levi L. Smith to Ms seat as representative from New Marlborough is not disproved by the evidence in the case.1
This report was agreed to.2
[Among the depositions on file are several which were rejected by the committee, for the reasons stated by them in the report, which furnish evidence, as to some of the voters questioned, covering the whole term of two years next preceding the election, that they had not paid any tax assessed upon them during that period. If these depositions had been admissible in evidence, it is fairly to be inferred from the course of reasoning adopted by the committee, that the election . would have been declared void, provided the number of illegal votes had been sufficient if rejected, to prevent a choice.]
57 J. H. 214.
Same, 255. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502529/ | The election of Henry Wiimarth and Ebenezer Cole, returned as members from the town of Adams, was petitioned against by Jabez Hall and eighty others, and reported upon as follows by the committee on elections: —
“ At the election of representatives, holden at said Adams, on the second Monday (the ninth day) of November, 1835, the whole number of votes returned on the ballot for first representative was 623; Stephen B. Brown had 311 votes; Henry Wiimarth had 312, and was declared to be elected by a majority of one vote.
On the ballot for second representative, the said Ebenezer Cole received, and was declared to be elected by, a majority of twelve votes.
From the evidence submitted to the committee, it appeared that the equality of the political parties in the town of Adams rendered the remit of the election altogether doubtful, until it was closed, and that from this fact and other circumstances, great excitement prevailed during the whole election, which, commencing on said Monday, was closed on the Wednesday following.
That for causes invalidating the election of said Henry Wiimarth, the petitioners state :—
1. That one Ezekiel Bliss, a legal voter, presented his vote for the said Stephen D. Brown, which was by the selectmen refused.
Of this fact no evidence was offered to the committee.
2. That Jacob Thompson put in two votes.
3. That Lorenzo 1). Bailey put in two votes.
At the hearing before the committee, after the case was opened, and the evidence submitted on the part of the petitioners, a motion was made by the respondents for a postpone*327ment of the hearing, to enable them to produce the testimony of said Thompson and Bailey and said selectmen of the town of Adams, in relation to the facts above stated. Thereupon, it was proposed by the, petitioners, and agreed to by the respondents, that the testimony of Jenks Kimball, so far as it relates to said facts, should be waived, and the hearing proceed as if so much of said Kimball’s testimony was not in the case. The hearing proceeded, and no comment was made on the part of Kimball’s testimony referred to, by either party, but it was considered as withdrawn from the committee.
As the testimony referred to was waived by the counsel for the petitioners, on a motion to procure further testimony, and as what the result would have been, had such further testimony been introduced, cannot be known; the committee are of opinion that the testimony waived should not be considered in determining the validity of said Wilrnarth’s election.
But, as the matter before the committee of elections is not the private interest of the petitioners and respondents, but a public interest exclusively within the control of the house of representatives, and not to be affected by the agreements or admissions of any persons; the committee submit the testimony waived, as before stated, to the house.
Jenks Kimball testified, as follows: ‘1 think Jacob Thompson voted twice, and know Lorenzo D. Bailey voted twice, and informed the selectmen of the facts. Jacob Thompson was called twice on the same ballot, and the town clerk, Henry ’Wilmarth, observed that his name was on the list twice, through mistake: when it was objected he had voted before, Col. Wilmarth examined the list and found his name not checked, then he voted again; this was on Tuesday, in the forenoon; this was before the box was turned on the first ballot.’
(On being asked by the respondents,) £Be you sure Jacob Thompson voted on the first day?’ — the deponent replied, 4 Yes, I am sure he voted.’
For causes invalidating the election of said Wilmarth and Cole, the petitioners allege, first, that on the eve of the *328election, and after the assessors had made out their annual assessment, and committed the same to the collector of said town, the assessors entered on the list, then in the hands of the collector, the names of forty persons who had not been previously taxed for years on account of their age and poverty, and that the said persons were permitted to vote in said elections; and the names of the persons thus entered are annexed to said petition. This allegation is followed by another substantially the same, and referring to the same persons.
The committee are of opinion that these allegations are proved by the testimony, and as to the fact found, that the names of persons who voted were placed on the collector’s list at an illegal and improper time, it is deemed immaterial, because it is not a pre-requisite to the right to vote, that the voter’s name should be borne on the said collector’s list at all; therefore, the fact that it is placed there, at an illegal time, cannot destroy the right to vote. The effect of the facts stated, on the qualification of the persons named, will be considered under a subsequent allegation referring expressly to ‘illegal voters.’
Thirdly, the petitioners allege, that before the canvass was completed, to wit, on the first day of the election, the chairman of the selectmen proclaimed that the meeting was adjourned to the following day, without any vote of the town; and after the meeting was thus adjourned by the chairman, he, the said chairman, took the box containing the ballots up to that period, and carried the same away with him, said box not being tacked or sealed up.
This allegation is followed by two others, stating the same and additional facts, of which the committee find (from the testimony submitted to them,) the following to be material:—
That on the evening of the first day of the election, and after candle lighting, the votes for governor were counted, and there appeared to be a majority of votes for Edward Everett; that then motions were made to adjourn, and subsequently, to count the votes for representative; that confusion and noise occurred, accompanied with cries of ‘adjourn/ ‘no adjournment, count the votes/ &c., from the different parties who occu*329pied the different sides of the house, in which the election was held; that the noise and cries lasted from ten to fifteen minutes, then ceased, and were again at intervals renewed; that the chairman said a motion to adjourn was made, and remarked, as he frequently had, in the course of the election, ‘that order must be preserved, or that he could not do business/ or words to that effect; that the chairman did not put or attempt to put the motions to the meeting, but on his own authority, or that of the selectmen, declared the meeting to be adjourned to 9 o’clock the next day, and then taking with him the ballot box, in the manner stated, he, with the selectmen, left the house, and the people dispersed.
The material fact set forth in these allegations, and proved by the testimony relating to them, is, that the chairman of the selectmen adjourned the meeting on his own authority, or that of the selectmen, without taking a vote of the meeting, and against the declared will of a large portion of the voters assembled.
The committee are of opinion, that neither the chairman of the selectmen, nor the selectmen, have the power of adjourning a meeting, at his or their discretion, or without a vote of the meeting.
The constitution, in the tenth article of amendments, declares that ‘ meetings may be adjourned, if necessary, for the choice of representatives,5 without specifying whether they shall ‘ be adjourned’ by the vote of the meeting, or by the officers presiding, or who shall determine the necessity of an adjournment.
The act 1795, c. 55, § 1, for regulating elections, provides, that ‘ the selectmen present shall preside in such meeting, and shall regulate the same,’ and section 3d, ‘ shall have all the powers which are legally vested in the moderator of town-meetings, for the regulation thereof.’
The act of 1785, c. 75, § 6, provides, that the moderator ‘ shall be empowered ,to manage and regulate the business of the, meeting,’ and then minutely details the powers of the moderator, all of which contemplate the maintenance of order only; *330the power to adjourn town-meetings is not mentioned; such a power is nowhere expressly given to the moderator, or to selectmen; and if they possess it from the statutes cited, it can only be by inference from them.
But the committee do not consider that the power to ‘ preside over a meeting and regulate the same,’ or ‘ to manage and regulate the business of a meeting,’ involves a power which may determine its duration, silence its debates or prevent its purposes; and in their construction of the statutes referred to, they feel not only confirmed but directed by the revised statutes; these statutes, c. 15, prescribe the duties and powers of moderators, and adopt without any material change, the language of the act of 1785, c. 55; they also by a distinct new provision, § 25, place the power of adjourning the town-meeting in a vote of the meeting; this is deemed by the committee a legislative declaration, that the power to adjourn town-meetings is not given to moderators by the act of 1785, for the chapter quoted (from the revised statutes,) manifestly (by adopting the same words of grant) gives them all the powers they had before by the act, and yet expressly provides that this power of adjourning town-meetings shall be placed elsewhere.
The revised statutes, (in the chapter quoted) direct the committee in construing the constitution, as well as the acts referred to; for if the constitution were considered as placing the power in question in the moderator or selectmen, the revised statutes would contravene the constitution in placing that power in s the vote of the meeting.’
If neither the constitution nor the statutes give this power to moderators or selectmen, it remains where, in the opinion of the committee, it is placed by the common law of the land, in ‘ the vote of the meetingand this opinion is confirmed to the committee by the usage of this honorable house, and the general practice of the deliberative assemblies known to the law of the commonwealth.
If it is contended that, by ‘ a casus omissus ’ the law has left this power afloat, not placed anywhere; then if of necessity *331follows, that, if placed nowhere, it is not placed in moderators or selectmen; these officers are the creations of the law, and can possess no powers except those with which the law has invested them.
If the adjournment was illegal, it was altogether inoperative, and the case is to be considered as if it had not been; it was no legal continuance of ‘ the legally notified meeting,’ that was of necessity determined by the separation of the voters assembled; the assembling on the following day was not a legally notified meeting, and the proceedings of it were therefore merely void.
The committee find, that, at said election, fifty-one of the votes cast on the balloting for said first representative, and all the votes cast on the balloting for said second representative, were cast after the adjournment aforesaid; and they are of opinion, that the illegality of said adjournment affects alike the election of both of said representatives.
Some of the testimony submitted to the committee went to show, that the noise and confusion of the meeting, at the time of the adjournment, were so great as to render it impossible to put the motions made, or to ascertain the vote of the meeting upon them; but the committee are of opinion, that the weight of the testimony is against this position, and that the noise and confusion of a meeting cannot, under any circumstances, confer upon the selectmen a power to adjourn a meeting, which has not been given to them by the law.
Evidence was also submitted to the committee, going to show, that in previous years, the town-meetings of Adams had been adjourned by the chairman, without complaint or dissent on the part of the voters, and that during the last election, adjournments for dinner were made by the authority of the selectmen alone; but the weight of evidence disproved altogether the usage claimed for past years, and adjournments without dissent, for a short interval of time, were not considered to authorize an adjournment against the declared dissent of a portion of the voters, equal to a half, probably, of the whole number assembled.
*332It also appears from the testimony in the case, that on the day following the adjournment, at the time and place appointed, voters assembled, and the balloting was renewed, and the business of the meeting proceeded, as if said adjournment had been legal and regularly made.
As the committee are of opinion, that the motion to ‘ turn the box’ was subsequent to the motion to adjourn, they think it was at all events out of order, and the chairman was not bound to submit it to the meeting.
The fact stated in the allegations last above set forth, that the chairman of the selectmen carried the ballot box with him from the meeting on the evening of the first day, is considered by the committee wholly immaterial; if the adjournment was legal, and effected a legal continuance of the meeting, it was the duty of the selectmen to keep the box till the votes were received, and sorted, and counted; and the fact that it was so kept, that they might have abused their trust, is not deemed proof that they did so. If the adjournment was illegal, and’ all subsequent proceedings void, the state of the ballot box at the time, if known, or its subsequent treatment or custody, cannot affect the decision of the house.
Sixthly. The petitioners allege, that, during the canvass for said Wilmarth, the selectmen publicly proclaimed, that, if they received the vote of one Daniel P. Lapham, they should adjourn, and send for Richmond Brown, to balance the vote of said Daniel P. Lapham; that they did take the vote of said Daniel P. Lapham, and then stated publicly that they should receive no more votes, except the vote of said Richmond Brown, who was notoriously an illegal voter, and known by the selectmen to be such. Afterward the said Richmond Brown came, and the chairman said they would take his vote according to contract.
No evidence was submitted to the committee, in relation to the legal qualifications of either Lapham or Brown, and they are therefore both presumed to have been legal voters.
The other facts stated in the allegation are deemed fully proved; but as it appears that the list of voters had been re*333peatedly called before the declaration of the chairman was made, — that the balloting had continued two days, — and that on the first day over five hundred and seventy votes were received, and on the second day only fifty, — and as it does not appear that any legal voter was prevented by the conduct or declaration of the selectmen from gi ving his vote. — and as this fact is put in evidence by the petitioners, is, from its nature, particularly susceptible of proof, and as the testimony fails to establish it, the committee are of opinion, that the allegation and testimony relating to it are immaterial, except as exhibiting great impropriety in the proceedings and conduct of the selectmen.
Seventhly. The petitioners allege, that the selectmen permitted several persons, to wit, ten, to vote in said election of said Wilmarth and Cole, who were illegal voters.
And the names of said persons are annexed to said petition.
The petitioners objected to Alpheus Rowse and Lorenzo D. Bailey, that they bad not the residence in the town of Adams, which was required by the law as a qualification of a legal voter.
In relation to Rowse, the evidence proved that in February last, hr; left the town of Adams, taking with him his wife and household goods, and said at the time of his departure that he expected to reside in Pittstown, N. Y., a year or longer. He however returned to Adams with his wife in the latter part of July last, and has resided there since. His object in going to Pittstown was to take charge of a factory, as its overseer.
The committee did not find in this testimony conclusive evidence of such an intent on the part of Rowse, at his departure from Adams, as would effect a change or loss of his legal residence.
His actual absence was less than six months, and his declaration 4 that he should be gone a year or longer,’ rather limits the term of his expected absence, than indicates an intention of residing permanently elsewhere.
lie left Adams for a temporary purpose, and in the exercise, of his vocation; if it was his intention when that purpose *334failed or was completed, be it sooner or later, to return there; his residence would not be lost, and such an intention is consistent with his declaration and the testimony, and is indicated by his subsequent and speedy return.
Other testimony was submitted to the committee, which was deemed by them inadmissible, but which if admitted would not have altered the opinion expressed.
In relation to Lorenzo D. Bailey, the evidence showed, that he went away from Adams in the fall or early part of the winter of eighteen hundred and thirty-three, and returned in the fall of eighteen hundred and thirty-four; and the witness who deposed to these facts testified that ‘ when he went away the first time, he run awayfor what cause, with what intent, and for what time, does not appear. And the committee find nothing in this testimony proving said Bailey not to be a legal resident in the town of Adams.
To all the persons referred to in this allegation, and in the second and third allegations above set forth, as illegal voters, the petitioners objected that they had paid no legal1 state or county tax’ within two years, next preceding said election.
In relation to which the evidence showed, that on or about the 20th of October last, the assessors of the town of Adams made the assessment of taxes on the valuation taken for the town, and made up the list for the collector from the assessors’ books, in which each person was taxed his proportion of the whole sum the town of Adams was to raise for the town and county tax for the year; the list so made up, being completed, was signed by one of the assessors, and left with the other two, to be delivered to the collector; the collector received the list from the assessors, duly completed, in the early part of November, for collection of the taxes. Two of the assessors took the list from the collector again on the Saturday evening preceding the election, saying, that ‘they had omitted some names which ought to have been assessed.’ They, with the assent of the third assessor, on Saturday evening, and on Monday morning, (while the election was in progress,) entered the names of the persons referred to in the *335several allegations mentioned above; — though the number of persons on the collector’s list was thus increased, no alteration was made in the original valuation, or assessments, so that each person previously assessed paid the same sum, and the same proportional part of the whole sum voted by the town and required by the county, that he, would have paid had the additional names not been entered on the list of the collector; so much money, therefore, as was received from the persons added to the collector’s list, was over and above the sum voted by the town. Of all the persons added to the list, but one was taxed for anything besides his poli.
From the evidence of Daniel Smith, the collector of the town of Adams, it appeared, that the taxes of 1835 were not paid in Adams by Asabel Hurlbert, John Allen, Sidney Barker, Stephen Young, Sylvester Cheesboro’, Wrn. Dean, II. Pike, Jno. Metcalf, Perry Beers, and Asa Hurlbert; and also, that these individuals had not paid any taxes in Adams for the two years next preceding the election. But it further appears, from said Smith’s testimony, that some of the persons added to the collector’s list by the assessors, in the manner stated, produced receipts of taxes paid in other towns; who or how many produced such receipts does not appear; so, that, for all that appears, some or all of the persons enumerated above, may have produced such receipts, and proved themselves legal voters at said election.
It also appears from said Smith’s deposition, that three only of the persons who were added to the collector’s list had, for two years previous to said election, paid in Adams any other tax than the poll tax assessed upon them for the year 1835, under the circumstances above detailed, and it was strenuously contended by the petitioners, that the act of the assessors, in entering names on the collector’s list at the time and in the manner they did, was altogether illegal; that it created no ‘ tax,’ and that the payment of the money assessed was not a payment of any ‘ legal tax,’ and gave no right to vote to the persons paying it. Admitting this to be true, it is deemed immaterial, because the testimony does not admit of the ap*336plication of the argument to the point under consideration. Although this assessment may have been illegal, and the payment of it inoperative, yet it may be, that some of these persons also were among those of the added list, who, as Smith testifies, produced ‘receipts of taxes paid in other towns;’ this fact appears from the witpess adduced by the petitioner on his cross examination, and his testimony leaves it uncertain who they were; it is uncertain as to each on the list, and therefore uncertain as to all; for, on going through the list, the committee are unable to say of any one, that his legal qualification is disproved; it is only rendered uncertain, and in proving no more than this, the committee are of opinion, that the petitioners fail to sustain the burden of proof that is upon them, and to rebut the legal presumption, that all the votes received by the selectmen were from legally qualified voters.
Eighthly. The petitioners allege, that during the canvass aforesaid the selectmen took from the box in which they were deposited several ballots, to wit, to the number of ten, all of which rendered the said election of representatives uncertain, irregular and void.
The testimony relative to tins allegation proves, that a vote was taken by the chairman of the selectmen from the box of votes given for governor on the first day of the election, and put into the box of votes for representatives; but it also appears, that this was done in the presence and with the assent of the voter, to correct the mistake which he had made in depositing his vote in the wrong box, and the objection was waived by the petitioners.
The testimony also proves, that on the second day of the election, a vote was taken out of the representatives’ box by the chairman of the selectmen; but it is also in evidence, that the vote was put in illegally and by a man who had voted before, and was openly withdrawn by the chairman in the performance and not in violation of his duty. Some doubt was expressed by the petitioners as to the identity of the vote withdrawn ; but as it appears that ‘ the end of the vote stuck up,’ because ‘ the box was nearly full;’ that it was withdrawn imme*337diately after it was put in, the chairman observing ‘ it is not so far in but it may come out f the committee have no doubt oí what the witness to the fact seems at the time to have believed — that the vote taken out was the illegal vote put in.
Testimony was also given by two witnesses, who deposed that on the second day they were in the gallery, and saw the chairman take a vote from the box, and draw it ‘across the end of the box ’ and drop it on the floor.
It was contended by the petitioners, that the testimony showed that the vote testified to by the two last mentioned witnesses was not the same with the illegal vote before mentioned.
The two last witnesses testified that they were in the gallery twenty-five or thirty feet from the chairman, and that in withdrawing the vote his hand was drawn ‘ across the end of the boxwhile the first witness says ‘ the vote was not drawn across the end of the boxbut the different location of the witnesses, the two being in the gallery, the one on the floor of the house, and in different positions in relation to the chairman and the box, might account for a discrepancy so slight as this.
It was also contended, that the acts were proved as done on different times, but not one of the witnesses fixed with precision the time of the day, whether forenoon or afternoon, though all agreed that the fact they testified to happened on the second day of the election.
As the chairman was at the time in open meeting, and surrounded by his political antagonists, and under their excited supervision ; as the act of withdrawing a vote was one which could hardly have escaped their notice, and no evidence of such an act is given by those in the chairman’s vicinity, (save the testimony referring to the vote illegally put in); the committee are of opinion, that there is no proof in the case that the chairman was guilty of the grave charge contained in the allegation.
Tenthly. The petitioners allege, ‘that after the selectmen returned the box and votes into the meeting from whence they had been taken the day before, they kept a memorandum of *338every person who voted thereafter, with a view to know, as your petitioners believe, when, they could with safety close the poll.’
The committee are of opinion, that this allegation is immaterial.
The committee also find that previous to said election, an agreement in writing was subscribed, by some of the petitioners and others of their political party, to raise a fund to prosecute according to law any illegalities which might be practised at said election, affecting its result.
All the testimony submitted to the committee was in depositions adduced by the petitioners, but it appeared by the return of the magistrate taking the depositions, that the selectmen of Adams, and the sitting members of this house from said town, were duly notified of the examination of said witnesses ; that they, by counsel, attended the examination, and subjected the witnesses to such cross examination as they thought proper; and the fact, that the chairman of the selectmen, on the eve of the first day of the said election, adjourned the town-meeting without taking or attempting to take a vote of the meeting, appeared from the deposition of one of the said sitting members, and was distinctly admitted by both of them, before the committee, where the parties were heard by counsel.
On the facts, and for the reasons above set forth, the committee are of opinion, that at the town-meeting holden in Adams, as aforesaid, on the second Monday of November last past, for the election of representatives for said town, at this general court, now in session, the chairman of the selectmen of said town illegally adjourned said meeting, while said election was in progress, and before it was completed; and they therefore report that the supposed election of said Henry Wilmarth and Ebenezer Cole is void, and that their seats in this house be declared vacated.”
*339The report was agreed to (283 to 103), and the seats of the members returned from Adams declared to be vacated.1 The members were allowed their pay to the day of the acceptance of the report, and a precept for a new election in Adams was immediately issued.
A new election took place accordingly, and one of the members elected came in, and was qualified and took his seat. This second election was also controverted, for the reasons and with the result stated in the next report.
57 J. H. 254. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502530/ | The second election in Adams, at which Henry Wilmarth and Ebenezer Cole were again returned as members, and which was called in question by Jabez Hall and others, gave rise to the following report from the committee on elections:—
“ The petitioners represent, ! that at a meeting holclen at said Adams, on the tenth day of March current, for the purpose of choosing representatives, to fill the seats of Henry Wilmarth and Ebenezer Cole, whose seats had been declared vacated, the, said Wilmarth and Cole were declared by the selectmen, who presided at said meeting, duly elected.’ The petitioners deny the legality of the election of the said Wil-marth and Cole, and controvert the same, on the following grounds, to wit: —•
1. Because, ‘at the opening of the meeting, on the day aforesaid, the chairman having announced that the meeting was open, a motion was regularly made and seconded by legal voters, that the town choose two representatives; and thereupon the chairman put said motion to the meeting, and called for a vote thereon, which was then and there taken, and the contrary vote having also been taken, it was clear and certain, *340by the comparative number of hands raised, that there was a large majority against sending two representatives; and the petitioners say, that the chairman, noticing this fact, neglected and refused to declare said vote.’
2. Because, in the further progress of said meeting, Thomas Robinson, Esq., a legal voter, having noticed the irregularity of the proceedings, and desiring in some form to try the sense of the meeting, as to sending representatives, made a motion to adjourn said meeting to the next day, at 9 o’clock, A. M., which was regularly seconded by several voters in various parts of the house, which said motion the chairman refused to put to said meeting.’
3, Because, ‘afterwards, to wit, on the same day, Isaac Hodges, Esq., a legal voter, made a motion to adjourn the meeting to 3 o’clock, P. M. the next day; which said motion was also seconded by several voters ; and the petitioners allege, that the chairman arbitrarily refused to put this last motion to the meeting.’
The petitioners state, ‘that each and all the foregoing irregularities were committed before the meeting proceeded to ballot for representatives, and, in consequence thereof, the political party who desired the motions to be put, and the votes declared thereon, thus finding the dignity of the law broken down a second time, and a state of despotism introduced, retired from the house, and took no part in the said election of said Wilmarth and Cole.’
The evidence in the case is contained in sundry depositions, taken at the request of the petitioners and of the respondents, and, in the opinion of the committee, does not sustain the petitioners in their first ground of objection against the validity of the election.
In relation to the second objection, urged by the petitioners as cause for invalidating the election, the committee are not convinced, that the testimony introduced is of such nature as to require them to decide, that the election is invalid for the reason therein stated.
In the third ground of objection, and the evidence produced *341to the committee in relation thereto, they find cause for reporting such irregularity of procedure as, on principles heretofore sanctioned, and in the case of the very individuals whose supposed election is now controverted, must render void the proceedings of the meeting.
It appears that the voters were much divided in their opinion on the question of electing representatives. Soon after the meeting was opened, a motion was made and seconded, to -end two representatives; while this motion was being made, another was made and seconded not to send representatives ; and some discussion ensued as to which was the prior motion. The chairman decided that the motion to send was in order; the question on this motion was taken by hand vote, and the chairman declared he could not decide the vote; and then it was determined to decide the vote by ballot.
Between ten and twelve o’clock, A. M., and before the yeas and nays on the motion to send two representatives were called for, motions were made and seconded, ‘to adjourn to the tenth of April’ — ‘to adjourn till six o’clock in the afternoon of the next day’ — and ‘to adjourn to nine o’clock, A. M. the next day ’ — which motions were debated and opposed, as being out of order. The chairman stated, that ‘ he did not consider it necessary to adjourn,’ and he did not, in either ease, put the question of adjournment. Ballot was then taken by yeas and nays, on the motion to send two representatives, and resulted in a majority of thirty-one yeas.
After this result was declared, between four and five o’clock in the afternoon, and before any votes for representative had been given or called for; ‘ it being rainy, late in the afternoon, and many of the voters having left the meetinga motion was made by Isaac Hodges, to adjourn the meeting until three o’clock in the afternoon of the next day, which motion was duly seconded. The chairman, being asked by the mover and by another to put the motion, replied, that he could not put the motion, and neglected and refused so to do; and immediately called for votes for representatives, and the selectmen proceeded to call the list of voters ; whereupon some dis-*342turbanee and tumult followed, and the principal part of one of the political parties soon after left the house, and took no part in the election.
The material fact set forth in the allegation is, that the presiding officer of the meeting refused to put a motion to adjourn, regularly made and seconded. This fact is conclusively verified by the testimony.
In the case of the controverted election, from the town of Adams, — decided at the present session, — the illegality of proceeding was the adjournment of the meeting by the chairman, on his own authority, without taking a vote of the meeting, and against the declared will of a large portion of the voters.
In the present case, the illegality arises from the refusal, by the same chairman, to put the question of adjournment, regularly moved and seconded, though thereto especially requested by the mover, and by another of the voters present.
The committee think the latter course as erroneous, and as fatal to the legality of the election, as the former.
On the facts above stated, the committee are of opinion, and do report, that the proceedings of the meeting of the town of Adams, on the tenth of March instant, have rendered void the supposed election of said Wilmarth and Cole; and they recommend that the seat of said Wilmarth in this house, (the said Cole not having appeared to claim his seat.) be declared vacated.
This report was rejected1; and, no other or further proceedings being had in relation to the subject, the election, of course, stood confirmed by the 'house.
57 J. H. 445, 471, 482. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502532/ | “The committee on elections, to whom were referred the certificates of the election of members of the house of representatives, having examined and considered the same, report: — That the several certificates from the cities, towns and districts in this commonwealth, of the election of members of the house of representatives, committed to them, are, with the exceptions hereafter mentioned, substantially correct and satisfactory, and that the several persons therein named, have been, so far as appears from said certificates, duly elected, and are entitled to their seats as members of this house.
That the certificate from New Braintree, in the county of Worcester, of the election of Samuel Mixter, as representative from said town, is informal, unsatisfactory, and insufficient, because it does not specify the year in which the election was *348made, or the certificate given. But inasmuch as the said Samuel Mixter has resigned his seat in this house, the committee deem no action of the house in relation thereto necessary.
That by a certificate, signed by John P. Read and Riab Lee, as selectmen of the town of Bedford, in the county of Middle-sex, dated the twenty-eighth day of November last past, it appears that the qualified voters of said town, having been duly convened in town-meeting on said day, for the choice of a representative in the legislature of this commonwealth, did elect Amos Hartwell, being an inhabitant of said town, to represent them in the general court, to be convened and holden on the first Wednesday of January (then) next.
That, accompanying said certificate, was a statement signed by ‘John Bacon, constable of the town of Bedford/ dated the third day of January, Instant, declaring ‘that pursuant to a law of this commonwealth, the freeholders and other inhabitants of the town of Bedford, in the county of Middlesex, qualified according to the constitution, having been duly convened in town-meeting, on the fourteenth day of November, 1836, for the choice of a representative in the legislature of this commonwealth, did then and there elect Joshua Chandler, being an inhabitant of said town, to represent them in the general court, to be convened and holden on the first Wednesday of January, 1837.’ And the said John Bacon certified, that4 the person chosen as aforesaid has been by him, as constable of said town, notified thereof, and summoned to attend.’
That a certified copy from the records of said town, signed by Reuben Bacon, town clerk thereof, also accompanied said certificate, which sets forth that, ‘at a legal meeting of the inhabitants of said town, holden on the second Monday of November, A. D. 1836, for the purpose of choosing a representative to represent said town in the general court, next to be holden in Boston, on the first Wednesday of January (then) next, the inhabitants brought in their votes to the selectmen for a representative, which, being sorted and counted and declaration thereof made, as by law is directed, were as follows : — For Joshua Chandler, 70 votes; Amos Hartwell, 38; *349John Bacon, 10; William Page, 1; Cyras Page, 1; and said Joshua Chandler was declared to be chosen.’
That, accompanying said certificate of the election of said Hartwell, was a paper, purporting to be a true copy of one read in town-meeting on the twenty-eighth day of November, 1836, signed, ‘ Jona. Bacon and others,’ which sets forth that, ‘ Whereas the inhabitants of the town of Bedford, qualified to vote for representative in this commonwealth, did assemble on the fourteenth day of said November, for that purpose, and at the second balloting did make choice of Joshua Chandler, to represent them in the next general court, and made declaration thereof in open town-meeting; and said town chose a committee to wait on said Chandler, inform him of his election, and solicit an answer whether he would, accept of said office, which committee attended to that duty, and returned in open town-meeting, and gave to the selectmen said Chandler’s answer in the affirmative; after which said meeting was dissolved without further action on the subject; therefore, at the meeting (held twenty-eighth of November), called by the selectmen to choose a representative, the subscribers to said paper felt it their duty to enter their protest against any action of the town whatever on that subject, believing that such action would be against the constitution and laws of this commonwealth, and that the said Chandler was the member of the house in the said general court, and protested against the election as set forth in the warrant for the meeting,’ on said twenty-eighth day of November.
Having before them the certificate of the selectmen of Bed-ford, in the form prescribed by law, of the election on the twenty-eighth day1' of November' last, of Amos Hartwell, as representative of said town, the committee are of opinion that, in the papers presented to them there is no evidence which should invalidate his claim to a seat in this house. They have reported the substance of the statements presented to them in this case, that the house may take any order in relation thereto, which may be deemed requisite or expedient.
*350The certificate from Granby is dated November 17th, That from Townsend, “ “ 21st, Those from Orange and Falmouth, “ 30th, And that from Ashby, December 12th, last past; but as the several elections therein recited are declared to have been held on the fourteenth day of November last, the committee are of opinion that said certificates are to be received as satisfactory. As however doubts have been represented to exist on this point, the committee have presented the facts to the house.
The certificates from the towns of Hawley, Middleborough and Rochester, do not contain thereon any return stating that notice of the choice was given to the persons therein stated to be elected, and that said persons were summoned to attend. Such return being required by the Rev. Sts. c. 5, § 10, the committee have thought it proper to report the fact, although they are of opinion, that such omission cannot avail to deprive the members elected from said towns of their seats.”
This report was agreed to.1 The Bedford election alluded to in it became the subject of a separate report.
59 J. H. 48, 65, 83, 286. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502536/ | The selectmen of Sherburne, after the assembling of the legislature, petitioned the house for a writ of election to be issued to them, for reasons set forth in their petition, and which are fully stated in the report of the committee on elections, to whom the petition was referred.
The report was as follows
“ The legal voters of the town of Sherburne were duly convened on the second Monday of November last, tor the purpose of electing a representative. At that meeting they made choice of the late Silas Stone, Esq. The election was duly recorded, the requisite notice given to the said Stone, and he was summoned to attend at the meeting of the present legislature. Six days after his election, the said Stone became deranged, and terminated his own existence. In consequence of this act a new choice became necessary: but the time between the day of his death and the fourth Monday of November was not sufficient to give the notice required by their by-laws for a second meeting, without posting up that notice on the Lord’s day. It will, therefore, be apparent to this house, that the inhabitants of Sherburne, by reason of the premises, are deprived of a representative upon this floor without any fault on their part. The object of their petition is, to enable them to fill the vacancy occasioned by the death of their late representative elect.
It seems to the committee, that there is but one question involved in the consideration of the prayer of the memorialists, and it is this : Has this house the power to grant a precept for a new election to the town of Sherburne, in the case presented by their petition?
In order to arrive at a correct decision of this question, it is *363necessary to examine the constitutional compact, for the purpose of ascertaining what limitations there are, if any, to the general principle, that towns have a right to be represented in this house. The committee are not aware of any that bear directly upon this question, arid they would not hesitate to answer it affirmatively, but for a doubt intimated in an opinion of the justices of the supreme judicial court, transmitted to this house during the May session of the year one thousand eight hundred and twenty-six. The doubt may have been unintentionally raised on their part. The court were then considering the case of a member of this house elected to the council, and decided that the vacancy might be filled. In that opinion, they intimate that it may be different in the case of the death of a member. If that doubt rests upon the 2d article of the sixth chapter of the constitution, the committee can only say, that they do not see that it is at all conclusive on that point. They believe it relates mainly to the incompatibility of offices, and was intended to settle doubts as to the right of individuals to hold seats in the legislature, while they were members either of the executive or judicial branch of the government. And without this provision, questions would have arisen in cases where members of the house were appointed or elected to executive or judicial stations. The spirit of all free governments forbids the executive and judicial departments from exercising the legislative power. Consequently, the office of councillor is inconsistent with that of a representative upon this floor. And in case a member is elected from this body to the council, the town have a right to fill the vacancy by a new election. It is to be observed here, that in the article giving authority to fill vacancies in certain cases, there is no prohibitory clause super-added, forbidding the exercise of the right in other cases. The principle that induced the framers of the constitution to insert the provision seems to have been this. The town, having manifested their desire to be represented by the election of a member, are nevertheless defeated, without any neglect or fault of theirs. It is the interposition of a higher civil authority than their own — -and one over which they have no control — • *364that produces a result adverse to their wishes. And for this reason they are of right empowered to fill the vacancy. And by parity of reasoning, whenever the government of the United States has appointed a member of this house to an office incompatible with that of a legislator upon this floor, the house have issued a precept for a new election.
If the committee are right in their assumption of the principle laid down above, what bearing has it upon the question at issue, raised by the petition of the selectmen of Sherburne ?
The town have manifested their wish to be represented. They have elected a member; he was duly notified thereof, and summoned to attend at the meeting of the present house of representatives; but here a higher authority than that of a mere earthly tribunal is interposed. And that authority — before which ‘ the pride of princes and the strength of kings must bow ’ — has willed it otherwise. The vacancy in this case -is owing to the death of the late member elect. The cause the inhabitants of Sherburne could neither see nor control. Why then should they be deprived of the exercise of their right of representation ? The committee can see no good reason for such a decision.
There is yet another view of the power of the house in this case. The constitution has made it the sole judge of the validity of the election of its members. From its decision there can be no appeal. If, then, the house shall deem this a proper occasion to issue a precept for a new election, that election, with their sanction, will be valid. Of course, the house would never exercise the power upon this ground, unless justified by the principles of sound policy, as well as the principle of virtue, upon which a republican government only can be based.
In conclusion, the committee recommend, that the prayer of the petitioners should be, granted.”
This report was agreed to, and a precept issued accordingly for a new election.1
60 J. H. 101, 109. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502538/ | This was a petition of Elbridge G. Fuller, setting forth that he was duly elected a member of the house from the town of Holland, and praying that he might be admitted as such.
The committee on elections, to whom the petition was referred, reported thereon as follows: —
“ The depositions of nearly every qualified voter in the town of Holland were submitted to the committee, and in many instances two depositions were offered from the same individ-*367nal; besides which, many witnesses were present and were examined in person.
The petitioner, being called upon to produce the record of the town-meeting, did so; from which it appeared, that the town first voted to send a representative to the general court; then voted to reconsider their vote, and voted not to send, and then dissolved the meeting.
The selectmen contended, that the petitioner could not go behind this record, and show that any other vote was passed. But the committee were of opinion, that the clerk was only obliged to record whatever the selectmen declared to be a vote, and the whole ground of the petitioner’s claim being, that the selectmen had refused to declare a result of the first ballot to be a vote, when it really was one, — -further evidence was admitted.
The corrected list, of voters used on the day of election was before the committee, and contained (as was agreed) one hundred and five names. It was satisfactorily proved by Mr. Fuller the petitioner, that twenty-four of these voters were absent at the first ballot, — reducing the number of voters present at that ballot to eighty-one. This fact was not disputed. Mr. Fuller contended before the committee, that the result of the first ballot was: — whole number of ballots, 78; for Elbridge G. Fuller, 41; Ezra Allen, 30; scattering, 7. The selectmen contended that the result was : — -whole number of ballots, 85; for Elbridge G. Fuller, 41; Ezra Allen, 37; scattering, 7.
The committee observe, that by the last calculation there were four more votes than the number of voters present; besides, the selectmen could produce the names of but thirty-six who might by any possibility have voted for Allen; and farther that there are forty-one, about whom depositions were exhibited tending strongly to prove that they did vote for Fuller.
There was evidence that after the hat was turned, at the first ballot, the votes were sorted and counted. All the testimony agrees that Mr. Fullers pile of votes was forty-one, and *368that the scattering pile contained seven. Of the other pile there is positive testimony that it contained thirty-seven votes, and as positive that it contained only thirty. One statement sworn to by a very credible witness is, that a person counted Mr. Allen’s votes and made twenty-nine, — -that some one observed ‘ there is one under your hand,’ he raised his hand, found one, and said 1 that makes the thirty.’
The committee think it possible that the mistake may have arisen from some one, in attempting to return the two piles using these words, ‘thirty — seven’—and then adding by explanation, ‘ seven scattering.’
The town clerk had minuted the numbers forty-one and seven, but before minuting a return of Allen’s votes, the chairman of the selectmen had separated Fuller’s votes into three piles, one for ‘ Elbridge G. Fuller,’ one for 1 E. G. Fuller,’ and one for ‘ E. G. Fuller, Esq.’ One of the votes for E. G. Fuller, was shown to the clerk, and an inquiry made whether it was a legal vote. The clerk answered that he did not know what was the law in this state, but it would not be so in Connecticut, The chairman then said, ‘there are some votes for Elbridge G. Fuller, some for E. G. Fuller, and some for E. G. Fuller, Esq., I do not know what to do with them, and they must bring in their votes again, with the name written in full.’ Another of the selectmen said to him, ‘ you are too fast, you have not yet declared there is no choice.’ He then announced that there was no choice.
On the second attempt to ballot, it was announced that one man had put in two ballots, and the balloting was stopped, and a new one was commenced. The person, who was supposed to have put in two votes, was a Mr. Benjamin Franklin, one of Mr. Fuller’s friends. But he was proved to be an aged and conscientious man, and the mistake was observed ancj immediately made public by a Mr. Partridge, another of Mr. Fuller’s friends.
On the third and fourth attempts there was no choice; and then the meeting was adjourned to meet in the evening and vote for governor.
*369The votes stood: —
Fuller. Allen. Scattering,
1st ballot, 41 37 or 30 7
2nd ballot, 39 37 5
3d ballot, 41 37 4
There was evidence that several voters changed their candidate on the. second ballot.
The votes for governor in the evening stood as follows: — for Morton, 44; for Everett, 40; for W. Weld, 1.
The one for Weld, (who is one of the selectmen,) was thrown by Mr. Fuller.
Mr. Fuller at an early day demanded a certificate from the selectmen.
The above is a statement of all the testimony deemed by the eommitee to be of any great importance. There was some additional testimony tending to impeach adverse testimony, but it was not considered very important. All the depositions are on file, and are accessible to every member of the house, who may desire to investigate them.
The committee, are unanimously of opinion, that the following facts were proved or agreed: — whole number of voters in the town, 105; proved absent on 1st ballot, 24; leaving voters present on 1st ballot, 81. If they had all voted, the number necessary for a choice would have been 41.
Elhridge G. Fuller had that number, and should have been declared the member elect.
There was some testimony tending to show that there were offers to treat voters, made by the partisans of both candidates, but the committee did not think it of sufficient consequence to vary the result. There is no law against treating at elections.
The committee therefore recommend, that Elbridge G. Fuller be declared the member elect from Holland, and that he be duly qualified to take a seat in this house.”
A minority of the committee on elections, concurring with the majority, in reference to all the facts stated in their report, presented their views in a counter report, accompanied by *370several depositions, which were in the case, and not contradicted.
The depositions were as follows; — ■
DepositioN of Reuben Stevens.
I, Reuben Stevens, testify and say, that Fuller never did authorize me to offer rum, but he (Fuller) stated this: that if he was elected, he should treat; that he requested me to state that, “ if he was elected, he should treat; the town-meeting was so early in the day, he should find some crackers and cheese, or bread and cheese, or something like that.” I stated to others as Fuller stated to me, and I presume I stated to some, if Fuller would not treat, I would.
Question by Linus Child, (counsel for Fuller.)
Did Fuller ever authorize you to say in his behalf to any one, if he would vote for him, that he (Fuller) would treat him or furnish him anything to eat ?
Answer. No, sir.
Question by same. Did Fuller ever request you to say to any one, that if he was elected, he would treat or furnish anything to eat ?
Answer. I don’t recollect that he did.
Question by same, Was what was said by you to voters, said upon your own responsibility, and not at the request of Fuller ?
Answer. On my own responsibility.
Question by same. How long have you been a voter in Holland :
Answer. Twenty-nine years.
Question by same. Has it always been the custom for persons elected as representatives, to treat after their election ?
Answer. It has till within a few years.
Question by same. Have not the representatives elected in Holland always treated ?
Answer. I recollect of only one instance in which it was not.
Question by selectmen of Holland. About how long before the November meeting did Fuller tell you, that if he was elected, he would treat ?
Answer. I cannot certainly tell. Should think about two or three weeks.
Question by the same. Did Fuller, at the time of the above conversation, or at any other time, intimate to you a wish that you would endeavor to procure his election ?
Answer. I had some conversation with Fuller on the subject, and I stated to him, that I thought I knew of some that would vote for him, and that I should use my endeavors to procure his election, if he would consent to be a candidate.
Question by the same. 'What did Mr. Fuller say in reply to the above statement made by you ?
Answer. He consented to stand as a candidate.
Question by the same. Did he also express his consent that you should use your endeavors to procure his election ?
Answer. I think he did.
Question by the same. Was this conversation before or after his assurance that he would treat if elected ?
Answer. I don’t know whether it was at that time or after.
Question by the same. Did you make known the statement of Mr. Fuller, that he would treat if elected, to the voters; if so, to how many ?
*371Answer, I made known that statement to a considerable number, but don’t know how many.
Question by the same. Had you ascertained who and how many would vote for Mr. Fuller, and did you state the result of your inquiries to Mr. Dixon, before the election ?
Answer. I think I did, and I told him l thought he would have a majority.
Deposition of Reuben Underwood.
I, Reuben Underwood, testify and say, that about a week before town-meeting, held on the 13th instant, for representative, Mr. Fuller asked me, who I was going to vote for for representative. I told him I did not know, but thought I should vote for Capt, Freeland Wallis, lie asked, what made me vote for them cold water men ; he said he would not vote for them, but would vote for somebody that would treat. I told him I did not know who would treat; he said there were enough of them that would ; he said if they would vote for him, and he went, he would treat them all; they should not go dry, lie would give them all they would drink. I answered, I guess I shall vote for you.
Question by L. Child. Did you vote for Fuller ?
Answer. I did not.
Question by same. Was the conversation a jesting and romantic one ?
Answer. I don’t know but it was a laughing talk; my opinion is, I thought he wanted me to vote for him.
Question by same. Were you in earnest or jest when you said, “ I guess I shall vote for you then r”
Answer. I guess I was in earnest; no, I was in romance then.
Deposition of Elisha Kinney.
I, Elisha Kinney, testify and say, that I am an inn-holder in the town of Holland, and on the 13th day of November last, the day of election, after the meeting was adjourned from the meeting-house to the tavern, Fuller told me to give the people something to drink. I asked him if he wanted I should treat any only those who voted for him; and he said, yes, you treat all who would drink at his expense. I asked him, if I should let them have all they would to drink, and he said not; let them have only one glass apiece, and that I might take their names down, so as to know that they had had a glass, I should think there were something like forty glasses drank on Fuller’s expense, for which he paid me.
Question by selectmen. Did Fuller, at or before the said town meeting, order liquor to be furnished to the voters of Holland, or pay for liquor so furnished, and if so, when, and to what amount ?
Answer, He did not, except what I have stated, after the election was ov#.
Question by the same. Was proclamation made by you, or by any one else to your knowledge, that all the voters could have a drink on Mr. Fuller's account ?
Answer. I spoke to all that were in hearing, that all who would drink on Fuller’s expense, could be furnished with one glass each.
Question by L. Child. Were all that drank at Fuller’s expense of one party ?
Answer. I cannot tell. I should think not.
Question, by selectmen. Do you know that any drank on Mr. Fuller’s account, besides such as voted for him ?
*372Answer. 1 do not know who voted for Fuller, nor who voted on the other side.
There was also the deposition of Elisha Willis, testifying that Reuben Stevens told him that Fuller would give him as much as he could eat and drink, if he would vote for him.
There was verbal testimony before the committee, that a minor, the son of Col. Allen, offered one individual a glass, if he would vote for his father ; and that a Mr. Drake offered a voter the same inducement to vote for the same gentleman. Neither of these acts was proved to have been authorized by or known to Col. Alien, the candidate.
The minority concluded their report as follows: —
“ The minority believe that it is the duty of a petitioner, who comes to claim a seat in this house, to come with clean, pure and unsullied hands. They think that the above detailed testimony, which is entirely uneontradieted, clearly shows that the judgment of the voters, in exercising their electoral franchise, had been tampered with by the candidate, and that he offered an inducement, — -a bribe, (no matter how paltry or contemptible that bribe may have been,) — to secure the favor and votes of the legal voters of Holland. They prove that he not only offered the bribe, but authorized others to offer it, and in the end paid it.
Believing that the constitution gives us the power to judge of the legality of the election of every gentleman returned as a member of this house; believing that the election of Mr. Fuller, (if obtained at all,) was obtained by illegal means,— by means tending to prostrate the benefits of our right of suffrage, to lessen the sanctity, the holy purity of the ballot box, and eventually (if persevered in and sanctioned) to destroy all confidence in a republican and elective form of government; the minority recommend that the petitioner have leave to withdraw his petition.”
The report (of the majority) was rejected, after debate, by a vote of 151 to 189; the question being stated on agreeing thereto; and a motion to reconsider, afterwards made, was, also rejected by a vote of 117 to 217.1
60 J. H. 144, 168, 172, 177, 184. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502964/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
This is an appeal from judgments and orders of the Window Rock District Court which dismissed all the Appellants’ claims. They appeal to challenge the validity of certain sections of the 1990 Navajo Nation Election Code, 11 N.T.C. §§ 1-380, and its application to them.
I
The Appellants are Rough Rock Community School, Ramah Navajo Community School, Borrego Pass Community School, each school’s respective local school board, and the Rough Rock Chapter. Each of the schools is located within the exterior boundaries of the Navajo Nation and each is incorporated under either the laws of Arizona or New Mexico.
On April 6,1990, the Navajo Nation Council enacted the 1990 Navajo Nation Election Code. Section 11 .B of the Code directed the Education Committee of the Navajo Nation Council to set the size of school boards and apportion school board seats among the chapter or chapters represented by each school board. After developing and approving an apportionment plan, the Education Committee was directed to submit the plan to the Navajo Nation Board of Election Supervisors for use in the next elections. 11 N.T.C. § ll.C.
On November 6, 1991, the Education Committee approved Resolution ECN-72-91 which adopted an apportionment plan for certain Navajo school boards. The plan set the number of school board members to be elected to each board and *169determined which chapter(s) would be involved in the election of each board. The plan directed that the school boards be selected and constituted in a manner different than that stated in the Appellant schools’ Articles of Incorporation or corporate by-laws. The Board of Election Supervisors received the apportionment plan, but it was not submitted to the Navajo Nation Council for approval. The plan was first used in the 1992 School Board Elections.
Section 2.EE of the Election Code defines school board members as follows:
Members of a local school board who are elected during chapter and/or special elections. Officers organized under the laws of the Navajo Nation charged with the administration of the affairs of the Bureau of Indian Affairs and other schools excluding private, parochial, and state schools, (emphasis supplied).
School board candidates must meet certain eligibility requirements: they must be enrolled Navajos; be registered voters in the chapter they wish to represent; be at least 21 years old; must not have been convicted of a felony within five years prior to their candidacy; must not have been convicted of certain misdemeanors involving children; and “[m]ust have demonstrated interest, experience and ability in Educational Managaent and must be able to communicate such to Navajo communities.” 11 N.T.C. § 8.D.4(a)-(i) (emphasis supplied). The Election Code does not define “Educational Management.”
The Appellants filed a complaint in the Window Rock District Court on April 28, 1992 seeking declaratory and injunctive relief. First, the Appellants claimed that the Election Code and the Education Committee’s apportionment plan did not apply to them because they were private, and therefore, explicitly excluded under section 2.EE of the Election Code. Second, the Appellants claimed that section 8.D.4(i) of the Election Code was void for vagueness or illegally restricted the right of Navajos to run in school board elections. Third, the Appellants claimed that the Education Committee violated section 11 .C of the Election Code by failing to consult with them and their respective chapters when developing the apportionment plan. Fourth, the Appellants claimed that the Board of Election Supervisors violated section ll.E of the Election Code because it failed to arbitrate the dispute between the Appellants and the Education Committee in a fair and appropriate manner. Fifth, the Appellants claimed that the apportionment plan denied their equal protection and due process rights in that the make-up of the Appellant school boards would be inconsistent with that of school boards in other chapters. Finally, the Appellants claimed that the apportionment plan was not presented to the Navajo Nation Council as required by section 321 .A. 8 of the Election Code.
At the District Court’s request, a hearing was held for the parties to present evidence on whether the Appellant schools were “private schools.” On July 31, 1992, the District Court ruled that the Appellant schools were not “private schools” for purposes of the Election Code and denied the Appellants’ request to enjoin the August 4, 1992 School Board Elections.
*170In reaching its decision, the court considered and weighed the following facts: the schools were located within the exterior boundaries of the Navajo Nation; the schools were incorporated under the state laws of either Arizona or New Mexico; community organizing efforts at the local chapter level resulted in the creation of the schools; resolutions of the respective chapters authorized the initial plans to implement the schools; the school board elections have been held at duly called chapter meetings; the school board members are accountable to the chapter; the Navajo Nation Council required the schools to be certified as “tribal organizations” to receive federal grants; the schools receive 100% of their funding from federal grants; the schools hire their employees in accordance with their own policies and procedures, and purchase their own equipment and classroom materials; the schools do not own the land or buildings where they conduct educational activities; and the schools do not charge their predominantly Navajo students tuition.
A trial was held on the remaining issues. After the Appellants presented their case, the Navajo Nation moved for involuntary dismissal of the Appellants’ remaining claims pursuant to Rule 39(b) of the Navajo Rules of Civil Procedure. The District Court reserved decision on this motion until the Navajo Nation presented its case.
On February 14, 1994, the District Court granted the Nation’s motion for involuntary dismissal and dismissed all of the Appellants’ remaining claims.
The Appellants appealed the dismissal and, on August 26, 1994, this Court granted the Appellants’ motion to divide the issues on appeal. Therefore, this appeal is limited to the Appellants’ first, second, and sixth claims, as stated above. Oral argument was heard on April 25, 1995 at Stanford Law School in Palo Alto, California.
II
The following are the issues on appeal:
1. Does the 1990 Navajo Nation Election Code, 11 N.T.C. §§ 1-380, apply to the Appellant schools?
2. If the Election Code does apply to the Appellant schools, does section 8.D.4(i) of the Election Code illegally restrict the right of Navajos to be candidates for the school boards of the Appellant schools?
3. If the Election Code does apply to the Appellant schools, does the failure of the Education Committee or the Board of Election Supervisors to submit the apportionment plan to the Navajo Nation Council for approval, pursuant to section 321.A.8 of the Election Code, invalidate the apportionment plan?
III
This Court must determine if the Appellant schools are “private,” “public,” or “other schools” to determine if the Election Code applies to the Appellants. If the schools are “private schools,” they are explicitly excluded from the application *171of the Code pursuant to that portion of section 2.EE which states as follows: “Officers organized under the laws of the Navajo Nation charged with the administration of the affairs of the Bureau of Indian Affairs and other schools excluding private, parochial and state schools. ( emphasis supplied).
The District Court held that the schools were neither “public” nor “private,” but “local community schools,” and, therefore, were “other schools” within the meaning of section 2.EE. The District Court refused to enjoin enforcement of the Election Code against the Appellants.
American law contains little helpful guidance in pinpointing a definition for “private schools.” One court defined “private schools” as schools operated by private interests as a substitute for instruction required in public schools operated by municipalities. Clark v. Planning and Zoning Comm’n of Town of Westport, 210 A.2d 320, 321 (Conn. 1965). Other courts add the requirement of support and management by individuals. See Flagg v. Murdock, 15 N.Y. S.2d 635, 637 (N.Y. Sup. Ct. 1939); Livingston v. Davis, 50 N.W.2d 592, 596 (Iowa 1951).
Some federal and state courts have defined “private schools” as “non-public schools,” therefore, definitions of “public schools” may provide some direction. The most common trait of “public schools” found by these courts is support from the local community through taxes. See Cook v. School District No. 12, 21 P. 496, 497 (Colo. 1889); Reizel, Inc. v. Exxon Corp., 349 N.Y. S.2d 14, 18-19 (N.Y. App. Div. 1973); Pizza Hut of America, Inc. v. Pastore, 519 A.2d 592, 594 (R.I. 1987); Newman v. Schlarb, 50 P.2d 36, 39 (Wash. 1935). Another common characteristic of “public schools” is control by a local governmental authority. See Reizel, Inc., 349 N.Y. S.2d at 19; Worcester Vocational Teachers Association v. City of Worcester, 429 N.E.2d 718, 720-21 (Mass. App. Ct. 1982); Traverse City School Dist. v. Attorney General, 185 N.W.2d 9, 19 (Mich. 1971).
In weighing the characteristics of the Appellant schools, this Court finds insufficient evidence to warrant a reversal of the District Court’s decision. The schools do not provide education that is a substitute for instruction that is otherwise required in public schools, nor do independent individuals financially support or manage the schools.
On the contrary, as the District Court found, the schools receive 100% of their financial support from the federal government. Although the schools use their own policies and procedures to hire their employees, and purchase their own equipment and classroom materials, local community organizing efforts spawned the creation of the schools, and the respective chapter resolutions authorized the schools’ initial plans prior to operation. Furthermore, the school board elections have been held at chapter meetings, the school board members are ultimately responsible to the chapter, and the Navajo Nation Council had to certify them as “tribal organizations” to receive federal grants under the Indian Self-Detemination and Education Assistance Act of 1975, 25 U.S.C. § 450a-450n.
It is therefore obvious that while the schools remain minimally self-sufficient, they have been inextricably intertwined with the Navajo Nation government and *172their local Navajo communities from their inception. The Appellant schools have characteristics of both public and private schools; therefore, we agree with the District Court that the schools are “local community schools,” or “other schools” under the meaning of section 2.EE of the Election Code. We hold that the Election Code applies to the Appellants. The District Court’s ruling on this issue is affirmed.
IV
Section 8.D.4(i) of the Election Code provides that school board candidates “[mjust have demonstrated interest, experience, and ability in Educational Management and must be able to communicate such to the Navajo communities.” “Educational Management” is not defined in the Code. The Appellants argue that the Educational Management requirement violates Navajo common law and the American concept of political liberty interests because it illegally limits the right of Navajos to be candidates for the school boards of the Appellant schools. The Appellants also claim that because the statute does not define “Educational Management,” this Court should find the section void for vagueness.
Both parties rely on the standards set forth in Bennett v. Navajo Board of Election Supervisors, 6 Nav. R. 319 (1990). It is apparent from the briefs that our holding in Bennett confuses both parties, hence, we take this opportunity to clarify that decision. Breach of political liberty and vagueness under Navajo common law are related but different issues. This distinction is the source of the parties’ confusion.
A. Political liberty
Navajo common law is the law of preference in the Navajo Nation courts. Navajo Nation v. Platero, 6 Nav. R. 422 (1991). In Bennett, we discussed the Navajo concept of beehaz’aanii. This concept refers to a higher law which we described as follows:
It means something which is ‘way at the top’; something written in stone so to speak; something which is absolutely there; and, something like the Anglo concept of natural law. In other words, Navajos believe in a higher law, and as it is expressed in Navajo, there is a concept similar to the idea of unwritten constitutional law.
Bennett, id., at 324.
Navajo customs and traditions that are fundamental and basic to Navajo life and society are higher law. Id. Thus, in Bennett, we acknowledged that Navajo beehaz ’aanii includes the concept of political liberty, a due process right, and applied the Navajo common law, rather than the American concept, of political liberty.
The Appellants confuse the Navajo and American concepts of political liber*173ty in their argument. Navajo common law acknowledges that “there is a strong and fundamental tradition that any Navajo can participate in the processes of government, and no person who is not otherwise disqualified by a reasonable law can be prohibited from holding public office(emphasis supplied). Bennett, id. at 325. This creates a mere reasonableness standard. The American standard is a more stringent standard. It requires a showing that not only is the statutory restriction reasonable, but also that it forwards some governmental interest. Id. The Appellants claim that the applicable standard set forth in Bennett is the more harsh American standard. However, the standard in Bennett is only a reasonableness standard and it is the standard that we follow here.
Navajo parents historically had no say in the education of their children until passage of the Indian Self-Determination and Education Assistance Act of 1975. The Bureau of Indian Affairs managed Indian education with its usual overbearing bureaucracy and non-Navajo school boards dictated policy in the state schools. Congress realized that Indian people must take control of educating their children and, in the late 1960’s, began “encouraging education of Indian children in schools administered by Indian tribes and organizations rather than by states.” Cohen’s Handbook of Federal Indian Law 694 (1982 ed.). The mechanism for such control is Title I of the Indian Self-Determination and Education Assistance Act of 1975, which requires the Secretary of the Interior “to contract with tribal organizations” for the.administration of Indian programs, including education. Id.
Congressional policy requires Indian control over the education of Indian children. Id. That policy is implemented in the Navajo Nation through Navajo grassroots participation on local school boards and in setting standards for the education of Navajo children in contract schools. Section 8.D.4 (i) of the 1990 Election Code, with its “Educational Management” requirement, unreasonably restricts that grass-roots participation. Parents and community members certainly have a significant stake in the education of their children.
Accordingly, we hold that section 8.D.4(i) of the 1990 Election Code is an unreasonable restriction which denies Navajos the right to seek election to Navajo school boards. The Navajo Nation has not shown to this Court that the “Educational Management” restriction is a reasonable restriction on the Nation’s Peoples’ political liberty.
B. Vagueness
Legislation which creates discretionary authority must not permit abuses of that authority. The portion of the Election Code which is challenged here as vague requires that school board candidates “[mjust have demonstrated interest, experience, and ability in Educational Management....” How can a candidate or the Board of Election Supervisors know who possesses such qualities? While we hold that the Navajo Nation has the authority to regulate school board elections for the Appellant schools, and while the vesting of discretion in public bodies is *174a fundamental element of administrative law, the problem is that while the statute vests discretion, it also permits abuses of that discretion.
The federal policy which underlies the creation of contract schools is central to this issue. As we noted, contract schools are funded as “tribal organizations” under the Indian Self-Determination and Education Assistance Act of 1975. The Bureau of Indian Affairs delayed implementation of the Act, so Congress enacted the following policy in the Education Amendments of 1978: “It shall be the policy of the Bureau, in carrying out the functions of the Bureau, to facilitate Indian control of Indian affairs in all matters relating to education.” 25 U.S.C. § 2010; Cohen’s Handbook of Federal Indian Law at 694. “Indian control,” as a matter of Navajo Nation public policy, means the Navajo Nation Council, in election law, may set reasonable qualifications for school board members.
In Bennett, we held that statutes which implement liberty rights must have ascertainable standards. 6 Nav. R at 327. We also adopted the following three-prong test to determine whether a statute is void for vagueness:
1) the statute must be one which the ordinary person, exercising ordinary common sense, can understand; 2) candidates and election officials should not guess the meaning of the statute; and 3) the statute must not cause people to differ as to its application.
Id. at 326.
The “ascertainable standard” principle drives the three-prong test. A “standard” is a requirement. In an election code, it is a precondition to run for public office. To ascertain is “[t]o make certain and definite.” The American Heritage Dictionary of the English Language 76 (1981 ed.). If the legislature does not make a standard or statutory requirement “certain and definite,” confusion prohibited by the three-prong test results.
Statutes which limit political liberty must be based upon reasonable public policy and they must give the regulating body concrete guidance as to their application. A statute must contain clear and objective measures of the standard to be applied to prevent abuses of discretion. Here, the Board of Election Supervisors has the authority to determine who may or may not have a “demonstrated interest, experience, and ability in Educational Management” without any objective means to challenge its determination. For that reason, the statute is vague.
Ascertainable standards in the sense of making things “certain and definite” is a Navaj o common law requirement as well. In the process of “talking things out,” or meeting the Navajo common law procedural requirement that “everything must be talked over,” there is a requirement of ashjoni adoolnil (making something clear or obvious). Navajo decision-making is practical and pragmatic, and the result of “talking things out” is a clear plan. The Navajo Nation Council did not make an important precondition to school board candidacy clear, obvious, certain or definite. In other words, it did not follow the Navajo traditional requirement of ashjoni adoolnil, and for that reason, the “Educational *175Management” requirement is void for vagueness. The standard was not objective but instead delegated unregulated discretion which could lead to manipulation and abuses of authority. Navajo thought deplores abuses of authority because of the consensual and egalitarian principles of governance. Any statute which permits such unregulated abuses of discretion in derogation of the Navajo common law is void.
V
The Appellants argue that the apportionment plan is void because the Navajo Nation Council did not debate and approve it. The Appellants rely on section 321.A.8 of the Election Code which states that the general powers and duties of the Board of Election Supervisors is “[t]o develop and recommend to the Navajo Nation Council all apportionment plans for election purposes.”
However, section ll.B of the Election Code specifically provides a procedure for the development of an apportionment plan for school board elections:
The Education Committee of the Navajo Nation Council shall set the size of each school board and shall apportion the number of school board seats among the Chapter or Chapters represented on each school board, (emphasis supplied).
From this language, it is clear the Navajo Nation Council has delegated the Education Committee as the appropriate body to finally approve all school board apportionment plans. We find the Appellants’ claim without merit; therefore, we affirm the District Court’s decision.
VI
In summary, we affirm the Window Rock District Court’s ruling that the Appellant schools are not “private schools” under the meaning of the 1990 Navajo Nation Election Code, and the Election Code therefore applies to them. We reverse the District Court’s ruling that section 8.D.4 (i) does not violate the due process right to political liberty of Navajos to become school board candidates and hold that section 8.D.4(i) of the 1990 Navajo Nation Election Code is void. Finally, we affirm the District Court’s ruling that the apportionment plan is not void and is applicable to the Appellants. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502965/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
The Appellant, Wayne Bigman (“Bigman”), claims that the District Court abused its discretion when it overturned a jury verdict in his favor and granted the Appellee, Mina Downey (“Downey”), a new trial.
I
On June 16, 1992, Downey fell off a horse and fractured her leg while trail riding on a tour conducted by Bigman at Monument Valley, within the boundaries of the Navajo Nation. Downey argued at trial that Bigman and his trail hands were negligent because they failed to use proper equipment, did not provide riding boots for their riders, rode too far ahead of the group, and had to retighten the cinches on Downey’s saddle because they were faulty. Bigman denied negligence and presented evidence that he maintained proper equipment, was not obligated to provide boots to riders, and his trail hand did not ride too far ahead of the party and properly inspected and tightened all the saddles twice during Downey’s ride as a routine safety precaution. The jury returned a verdict in favor of Bigman.
Downey filed a motion for a new trial, which the District Court granted, concluding that the jury verdict in favor of Bigman was inconsistent with the evidence, contrary to the law of negligence, and that new evidence warranted a new trial. The newly discovered evidence was an alleged additional eyewitness at the accident scene who was not identified until the second to last day of the trial. Bigman appeals the District Court’s order granting a new trial. He also seeks *177to supplement the record on appeal with a post-trial affidavit of the newly discovered witness, arguing that the alleged eyewitness arrived at the scene shortly after the accident.
II
A court may grant a new trial if the jury verdict is not supported by the evidence, is contrary to law, or if new material evidence is discovered. Nav. R. Civ. P. 59(a) (4), (8). The issue is whether the District Court abused its discretion in granting a new trial.
A
Navajo common law is the law of preference in the Navajo Nation. Navajo Nation v. Platero, 6 Nav. R. 422, 424 (1991). The traditional Navajo common law doctrine that applies to jury process is Navajo participatory democracy. One of the major differences between Western principles of adjudication and Navajo legal procedure as participatory democracy is that it is essentially egalitarian. Egalitarianism is the fundamental principle of participatory democracy. The egalitarian principle is the ability of the people as a whole to make law.
Navajo participatory democracy guarantees participants their fundamental right to speak on an issue, and discussion continues until the participants reach consensus. In this sense, decisions are a product of agreement among the community rather than a select few. Status, wealth and age are not determinants of whether a person may participate in the decision-making process. Furthermore, no one is pressured to agree to a certain solution, and persuasion, not coercion, is the vehicle for prompting decisions. Participatory democracy is evident throughout many sectors of Navajo society, including government operations, the chapter meeting, and peacemaking.
We previously discussed this fundamental tradition of Navajo participatory democracy:
In Navajo tradition, government and governing was a matter of the consensus of the people ... [tjherefore, there is a strong and fundamental tradition that any Navajo can participate in the processes of government, and no person who is not otherwise disqualified by a reasonable law can be prohibited from holding public office.
Bennett v. Navajo Board of Election Supervisors, 6 Nav. R. 319, 325 (1990).
The chapter meeting best illustrates this concept, because it is a continuation of traditional “family, neighborhood, and council gatherings where everyone had the opportunity to speak, and decisions were reached through consensus. We see this tradition preserved today in the chapter meeting, where disputes, plans and chapter concerns are discussed at length.” In re Estate of Ned Plummer Sr., 6 Nav. R. 271, 275 (1990).
*178A modern Navajo jury continues the fundamental tradition of community participation in the resolution of disputes through deliberation and consensus. A jury consists of members of the parties’ community who bring their “experience, culture and community standards into the jury box.” Bryant v. Bryant, 3 Nav. R. 194 (Shiprock Dist. Ct. 1981). The jury engages in deliberations, relying upon persuasion to reach consensus, to reach its verdict. These essential characteristics of a Navajo jury make it a modem expression of our longstanding legacy of participatory democracy.
A reformulation of the jury’s duties to permit it to ask questions of the witnesses during trial is more reflective of Navajo participatory democracy. To maintain impartiality, all the questions will be channeled through the judge, whose authority to permit or forbid the question is discretionary. This modification of jury trials in the Navajo Nation courts is a natural step back to traditional ways and a means to secure the future. See Austin, ADR and the Navajo Peacemaker Court, 32 The Judges’ Journal 8 (Spring 1993) (arguing for tribes to go “back to their own law-back to the future.”).1
Under Navajo statutory law, the fundamental right to a jury trial in civil cases complements and enhances the traditional doctrine of participatory democracy. 7 N.T.C. § 651(Supp. 1985). In fact, the Navajo Nation courts have an established presumption in favor of jury verdicts. General Motors Acceptance Corp. v. Bitah, 6 Nav. R. 45 (1988). A court may set aside the jury’s verdict when the evidence is insufficient, as a matter of law, to support the finding, Wilson v. Begay, 6 Nav. R. 1, 3 (1988); see also, Chavez v. Tome, 5 Nav. R. 183, 191 (1987), or when the jury is confused. Begay v. Karty, 5 Nav. R. 267, 269-70 (Window Rock Dist. Ct. 1987).
B
In this case, Downey relied upon the law of other jurisdictions to assert that a judge may function as a “13th juror” to substitute his or her determination of the facts for that of the jury. Under such a standard, one person, the judge, would possess the broad authority to overturn a decision made by consensus. The Navajo principle of participatory democracy does not condone such an authoritarian practice, and this Court will not compromise the place of traditional legal principles for foreign laws.
Navajo common law dictates that a judge’s discretion to set aside a jury verdict is not unchecked, but narrowly restricted to comply with participatory democracy and to preserve an individual’s right to a jury trial. Accordingly, we hold that the fundamental principle of Navajo participatory democracy forbids a trial judge from acting as a “13th juror.” This means that a trial judge must not substitute his or her own assessment of the facts for that of the jury. A judge should not overturn a jury verdict simply because he or she may have ruled differently.
*179This holding does not prevent a judge from overturning a jury verdict if the verdict is against “the clear weight of the credible evidence.” Nav. R. Civ. P. 59(c). In this case, there was evidence upon which a jury could reasonably base its verdict in favor of Bigman. The trial record shows that Bigman’s trail hand inspected and tightened the cinches on the saddles of all the riders on two occasions; that his trail hands were properly trained and provided adequate equipment; there were instructions and guidance to the riders; and the saddle did not slip, causing Downey to fall from her horse. She also signed a waiver of liability, testified that the horse was gentle, and none of the other trail riders heard her complain about the saddle slipping. Although Downey’s friend testified that she saw the saddle slip when Downey fell, the friend conceded that Downey’s fall could have caused the saddle to move, and witnesses for Bigman also testified that nothing was wrong with the saddle after the fall, and that there had been no history of problems with either the horse or its saddle on previous or subsequent rides.
While there was evidence in favor of Downey, the function of a jury is to weigh contradictory evidence, judge the credibility of witnesses, and draw conclusions that it deems most reasonable under the circumstances. Where there are close factual calls, the trial judge should give deference to the jury’s function as fact-finder. Juries can reach different conclusions, all of which can have sufficient evidentiary support to be upheld. In this case, the facts were conflicting and there was evidence contrary to the jury verdict, but ample evidence warranted the verdict in favor of Bigman. The District Court erroneously granted a new trial when the weight of the credible evidence was not against the verdict.
C
The finding that the verdict in favor of Bigman was not against the weight of the credible evidence necessarily implies that there was insufficient evidence to prove all the required elements of negligence. Where the plaintiff fails to meet the burden of proving that the defendant owed the plaintiff a duty, that the defendant breached that duty, and proximately caused injury to the plaintiff, the plaintiff is not entitled to recovery. Thomas v. SuCco, 1 Nav. R. 63, 64-65 (1993); Navajo Tribe of Indians v. Jones, 5 Nav. R. 235, 255 (Window Rock Dist. Ct. 1986); Mann v. The Navajo Tribe, 4 Nav. R. 83, 84 (1983); Cadman v. Hubbard, 5 Nav. R. 226, 229 (Crownpoint Dist. Ct. 1986).
In this case, the District Court interpreted the jury verdict as finding Downey entirely at fault for the accident. However, it did not apportion blame to Downey, but rather found that Downey failed to prove all the elements of actionable negligence against Bigman. The District Court was wrong to apportion fault using the doctrine of comparative negligence before all the elements of negligence were proven. Downey failed to meet her burden of proof, so the verdict in favor of Bigman was proper. The doctrine of comparative negligence does not demand, nor lead inexorably to, a verdict awarding some compensation to a complaining plaintiff.
*180D
The discovery of a new potential witness on the next to last day of trial does not justify a new trial. The revelation of a new witness does not necessarily mean the discovery of new evidence. Nav. R. Civ. P. 59(a) (4). Before granting a new trial, the District Court must first determine whether the new witness would offer evidence which (1) would probably change the result on a new trial; (2) was discovered since the trial; (3) would be of such a nature that it could not have been discovered before trial by due diligence; (4) was material; and (5) was not only cumulative and impeaching. Phillips v. Farley, 1 Nav. R. 69, 70 (1972). All five requirements must be met, and the scope of a new trial should be limited to the new evidence “unless the trial court finds that fairness and justice ... requires that there be a complete rehearing as to all the evidence.” Chavez v. Thomas, 5 Nav. R. 32, 34 (1985).
This Court has stated since Phillips that the failure to identify a witness is a sufficient ground for granting a new trial. Battese v. Battese, 3 Nav. R. 110, 111 (1982). In Battese, this Court denied an appeal from an order granting a new trial because the Appellant failed to identify a witness in response to an interrogatory and then called the witness at trial. Unlike this case, however, the issue in Battese was whether the Appellant had proven “probable cause” for review under 7 N.T.C. § 801(a). Because the Appellant in Battese did not object to the interrogatory, the Court held that she did not preserve the issue for appeal. This case is distinguishable from Battese because the issue here is the extent of a trial court’s authority to grant a new trial and not whether an act or omission of Bigman at trial preserved an issue for appeal.
Downey failed to meet her burden under the Phillips test. She failed to show that the testimony of the new witness would likely change the result in a new trial, be material, and not be cumulative or impeaching. Likewise, the District Court’s order relied on the insufficient ground that the new witness “may or may not be able to shed any light on what happened the day of the accident.” A court may not grant a new trial based on speculation, and the burden is on the party seeking a new trial to meet the requirements of the Phillips test. Downey failed to meet that burden.
We addressed this issue without considering the contents of Bigman’s post-trial affidavit of the proposed testimony of the new witness. The affidavit was not part of the trial record and we cannot consider it on appeal. Accordingly, Bigman’s motion to supplement the record on appeal is denied.
Ill
For the foregoing reasons, this Court reverses the order of the Kayenta District Court granting a new trial and reinstates the jury verdict in favor of the Defendant, Wayne Bigman.
. Sometimes referred to as “The Austin Theory of Going Back to the Future.” See, e..g., Gandhi Luthuli Peace Institute, “Seminar on Traditional and Modern System of Justice (Durban, South Africa, October 2, 1995) (citing the theory’s theme). | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502966/ | OPINION
Opinion delivered by
CADMAN, Associate Justice.
Fannie Charlie and Richard Antonio (“Appellants”) claim that the district court erred in finding them liable for damage to Elvis Castillo and Jackie Sam’s (“Appellees”) vehicle and in not finding Appellees liable on the Appellants’ crossclaim. Appellants further assert that the district court’s damages award of $2,000.00 was not supported by the evidence.
I
On August 14, 1993, between 7:00 and 8:00 p.m., a collision occurred between a pick-up truck driven by Appellee Castillo and livestock owned by Appellants Charlie and Antonio. The accident took place on Navajo Route 9, a public thoroughfare, approximately eight miles east of the Pueblo Pintado Chapter House, within the territorial jurisdiction of the Navajo Nation. Appellants’ livestock went through an opening in a fence bordering the highway where there was no gate or cattle guard. Appellees’ vehicle was damaged beyond repair as a result of the collision, and Appellants’ livestock, a cow and bull, died sometime after the accident as a result of the collision.
On October 12, 1993, Appellees filed suit in the small claims court seeking compensatory damages. Appellants filed a counterclaim, which the district court denied. The district court found that Appellants had breached their duty to prevent their livestock from straying onto the highway, and awarded Appellees $2,000 in compensatory damages based on both documentary and testimonial evidence.
On November 29, 1993, Appellants appealed this judgment. On appeal, *182Appellants argue that they are not liable for the damages because they are not required to repair fences built and maintained by the Navajo Nation, that Appellees drove negligently, and that the damages award was based on insufficient evidence.
II
In small claims proceedings, a party “waives all right to appeal except that either party may appeal on the sole ground that substantial justice has not been done between the parties according to the rules and principles of substantive law.” N.R.S.C.P. 20. Accordingly, we look to the law of negligence and damages to determine whether the district court failed to do “substantial justice.”
Under Navajo law, the plaintiff must prove that the defendant owed the plaintiff a duty, that the defendant breached that duty, and proximately caused injury to the plaintiff. Thomas v. Succo, 7 Nav. R. 63, 64-65 (1993); Navajo Tribe of Indians v. Jones, 5 Nav. R. 235, 255 (Window Rock Dist. Ct. 1986); Mann v. The Navajo Tribe, 4 Nav. R. 83, 84 (1983); Cadman v. Hubbard, 5 Nav. R. 226, 229 (Crownpoint Dist. Ct. 1986).
Under this test, the first level of inquiry is whether a livestock owner owes a duty of care to a motorist on a highway in the Navajo Nation. Appellants argue that livestock owners owe no duty of care to motorists because federal grazing regulations prevent them from making improvements on their land, such as repairing broken fences bordering highways.
Appellant Charlie’s grazing permit covers range unit #33 within the checkerboard area of the Eastern Agency of the Navajo Nation. As such, she is subject to the Navajo Nation’s Off-Reservation Grazing Code at 3 N.T.C. §§ 932-35 (1969).1 The Off-Reservation Grazing Code states, in relevant part, that “[a]ll improvements placed on range units shall be approved by the District Land Board and shall become affixed to the property.” 3 N.T.C. § 943 (1969). Thus, contrary to Appellants’ assertion, a permittee is not barred from constructing improvements to prevent her livestock from straying onto the highway.
Navajo law and federal regulations also require permitters to control and contain their livestock. Livestock trespass is prohibited on Indian trust lands, restricted lands, and government lands. 25 C.F.R. § 166.24(a) (1993). Permitters are not allowed to graze or drive livestock across any individually owned, tribal or government lands without an approved permit. 3 N.T.C. § 946(a)(5) (1969). These requirements, combined with the ability to repair or maintain fences in their grazing area pursuant to 3 N.T.C. § 943 (1969), impose a duty on livestock owners to control their livestock and take reasonable precautions to avoid livestock trespass. Even absent such regulations, where a fence is in place for the purpose of preventing livestock from straying onto a highway, a livestock owner *183has a duty to repair and maintain these fences, as well as gates and cattle guards.
Furthermore, livestock owners are more likely to have the foresight to predict any potential harm to motorists due to openings in the fencing. Under Navajo law, “failure to exercise ordinary care in avoiding foreseeable harm to others constitutes negligence.” Wilson v. Begay, 6 Nav. R. 1, 4 (1988). Stated differently, a person’s conduct is considered the proximate cause of an injury where the injury is one “which could have been reasonably foreseen by the defendant under the circumstances.” Thomas v. Succo, 7 Nav. R. at 64. Thus, under this standard, a livestock owner is liable where the injury to the plaintiff is one which could have been reasonably foreseen under the circumstances.
In this case, sufficient evidence exists to show that Appellants failed to exercise their duty of care. Wilson v. Begay, 6 Nav. R. at 3-4 (stating that this Court must uphold a district court’s finding of negligence if the evidence most favorable to that finding is sufficient to establish the defendant’s negligence). Appellant Charlie’s grazing pemit is confined to a “range unit,” beyond which she is not permitted to graze. 3 N.T.C. § 934 (1969). Moreover, Appellants knew that livestock frequently strayed onto the highway because there were no cattle guards and the gates had been removed about fifteen years before. As such, Appellants possessed the reasonable foresight that a collision between the livestock and a motorist was possible.
Granted, Appellants did raise the issue of broken fences at chapter meetings for the last ten years or so, but this effort is inadequate to meet the duty of care. Appellants should have repaired the fence, replaced the gate, or installed a cattle guard with the assistance of the District Land Board. If they had done so, they would not have to chase cattle all night to prevent them from trespassing onto the road, which was a concern of Appellants.
In sum, Appellants’ location in a range unit area mandates control of their livestock, as does any fenced grazing area on the Navajo Nation. Moreover, Navajo law never posed a bar to Appellants in the repair or maintenance of the fence bordering the highway. Appellants also possessed the reasonable foresight that a collision between a motorist and their livestock was possible. These factors are sufficient to establish a breach of duty. The decision of the district court finding Appellants liable does not constitute a substantial injustice, and is therefore, affirmed.
Ill
Appellants also assert on appeal that the district court erred in denying their counterclaim. The Appellants’ counterclaim argues that the Appellees are entirely to blame for the collision resulting in the deaths of Appellants’ cow and bull, 7 N.T.C. § 701(b) (Supp. 1985), or in the alternative, that Appellees are partially responsible for the loss suffered under the doctrine of comparative negligence. 7 N.T.C. § 701(d).
Navajo law imposes a duty on drivers to exercise “reasonable precaution” *184when approaching horse drawn vehicles and livestock. 14 N.T.C. § 522 (1988). This Court has recognized a heightened standard of care for drivers in open range areas on the Navajo Nation. Navajo Tribe of Indians v. Littleman, 1 Nav. R. 33, 34 (1971) (stating that “highway and traffic conditions on the Navajo Reservation require an extra degree of caution and due care and that Navajo drivers are under a duty to use a higher degree of care because of the general lack of fences and open range conditions on the reservation with horses, sheep and other animals apt to wander onto the highways.”). This heightened standard of care, however, does not apply in a closed range area where a fence prevents livestock from trespassing onto an adjacent highway. Under these circumstances, a grazing permittee has a duty to contain her livestock inside the fenced area and off of the highways. Consequently, we affirm the district court’s decision denying Appellants’ counterclaim.
IV
Lastly, Appellants claim that the damages award of $2,000 is not supported by the evidence. Navajo law requires that damages be proven by the plaintiff with “reasonable certainty,” whereby the “plaintiff’s testimony can constitute adequate proof of damages.” Wilson v. Begay, 6 Nav. R. at 5. Furthermore, “a reasonable basis for the computation [of damages] must appear in the record,” and the plaintiff must establish damages with the “best available evidence.” Id. The remoteness of the Navajo Nation often makes it difficult for a plaintiff to obtain expert witnesses, thus, this Court has stated “[t]here is no reason why a plaintiff witness cannot testify... showing the connection between the repairs and the collision” and “as to the authenticity of repair estimates and bills.” Deal v. Blatchford, 3 Nav. R. 159, 163 (1982). The plaintiff need only show that “(1) the repairs were necessary as the result of the wrongful act; and (2) the cost of the repair was reasonable.” Id. at 162.
The Appellees entered into evidence photographs of the damaged vehicle, the accident report that indicated “expensive damage” to the front end of the vehicle, and an estimate report from Basin Motors of Farmington, New Mexico which showed that the “damage exceeds the value of the vehicle.” Appellees also testified that the vehicle would not run as a result of the damage, that an automobile dealer said the damages exceeded $2,500, and that they were relying on the advice of their in-laws for the value of the vehicle.
This evidence, however, fails to indicate the actual cost for repairs or replacement of the vehicle. Indeed, the district court properly noted that a vehicle may have residual value, yet this element alone cannot establish damages. We fail to find a reasonable basis for the awarded amount of $2,000, and therefore, we reverse the district court’s determination of damages and remand the issue to determine the appropriate amount of damages.
In summary, this Court affirms the judgment in favor of the Appellees and remands the issue of damages to the district court.
. This Code supersedes the corresponding federal regulations at 25 C.F.R. §§ 166 etseq. 3 N.T.C. § 932(a) (1969). | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502541/ | The object of this petition is stated in the following report thereon of the committee on elections:
" The object of the petitioners is to obtain from the house of representatives a decision, that the election of Edward N. Harris, late a member of this house from the town of Malden, is void, and that the town will not therby be deprived of sending, to this branch of the legislature, nine years hence, two representatives.
In consequence of the resignition of Mr. Harris, there is no practical question raised by the memorial under consideration. And the house, upon the original petition from Malden against the right of Mr. Harris to a seat, discharged this committee, *379for the above reason, from any further consideration of the subject of that petition.
If the committe were now to present the question of the Malden election to the house, it must assume the following sahpe: ' Will the town of Malden be entitled to two representatives in the legislature of 1847?' Now it seems to the committee, that this proposition cannot constitutionally be definitively settled by the present house of representatives.The persons, who shall the occupy these seats, will have the right to judge of the validity of the elections, which shall take place during that year, and, whatever might be the decision of this house, whether in the affirmative or the neagtive, it would not be binding on them.
Why then should this house undertake to settle a question that may never arise, and if it should, to forestall a decision upon the validity of an election, to be made nine years hence? The committe can see no good cause, under any circumstances; and especially at this late period of the session, do they feel unwilling to raise an abstract question, which, if thoroughly discussed, would occupy a great deal of time, and the decision of which, when made, would be wholly inoperative upon those persons, who are to fill these seats at some future period.
Therefore, the committee recommend, that no further action should be had, in relation to the foregoing petition, and that the memorialists have leave to withdraw the same.”
This report was agreed to.1
60 J. H. 377, 459. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502543/ | The election of David Choate, returned a member from Essex, was controverted on the ground, that two persons, who were citizens of Maine, voted in the election lor him, and that if their votes had not been received, Samuel Hardy, the opposing candidate, would have been elected. The seat of Mr. Choate was also claimed by Mr. Hardy, on the ground above alleged.1 The committee on elections reported, that the petitioners against the election, and the claimant of the seat, both have leave to withdraw, and the report was agreed to by the house.2
No reason was assigned by the committee for the conclusion of their report; but it is probable, that the tact of the illegal voting was not proved.
61 J. H. 42,
Same, 93. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502544/ | The following is the report of the committe on elections in this case:
" The committe on elections, to whom was referred the memorial of Rowland Woodward and others, and the memorial of William Bennett and others, relating to the right of George Williams, returned as a member from the town of hubbardston, to a seat in this house, have heard the parties, and now present the following report:
The petitioners against the right of Mr. Williams to hold his seat prodeuced three witness, who were sworn, and testified that they were inhabitants of the town of Hubbardston, and were in the hotel of Mr. Clark, in te centre of that town, between eight and eleven o'clock on the evening, for political purposes; that at about eight o'clock, a large number of persons, stated by the witnesses to be from 50 to 100, came from the hall to the bar-room, filling that and the entry connected with it; that Mr. Williams addressed the persons in the bar-room in this manner: 'Gentlemen, I thank you for the honor you have shown me in nominating me as your candidate for the general court; and now, all of you, who are in the habit of drinking ardent spirits, are requested to walk up to the bar, and to take some, on my account, [or, at my ex-pense,] as it will give me very great satisfaction. You all know how I have been abused. I have been called the captain of the rum company.’ After a short pause. Mr, Williams again called upon the people present to ‘ step up and take something,’ whereupon the landlord set clown four decanters containing liquors of different colors, which the witnesses supposed to be different kinds of spirit, and perhaps some wine. A bowl of sugar, and a pitcher of water, were also placed on *384the bar counter, by the side of the decanters, and any one who chose helped himself to such as he best liked.
One of the witnesses testified, that he heard Mr. Williams say, when urging them to drink, that ‘ if he had not got money enough to pay the bill, his credit was good till to-morrow.’ After the people bad nearly all left the bar-room, the witness saw Mr. Williams go to the bar, and, he thinks, saw him take out a bank bill, and give to the landlord, and supposed he was paying for the liquor which had been drank that evening by Mr. Williams’s invitation. No one who drank was seen to pay, except Mr. Williams.
Mr. Williams denied having paid for the liquor, and moved the committee to delay the trial, for the purpose* of enabling him to procure evidence to disprove the charge of having so paid. On a little reflection, however, he withdrew his motion, and explained the matter in this way ; that a few days after the 10th of November aforesaid, lie fold the landlord that ‘ he had abused his house, and lie would pay for the candies, but would not pay for the spirit which had been drunk.’ The committee inquired, what amount lie paid for candles, and he replied, one dollar and seventy-five cents. There was evidence, that some of the persons, who drank at the bar, became excited: not so much as to prevent them from walking, but enough to prevent them from walking straight. There was no evidence, that any one who drank at Mr. Williams’s expense, on Saturday evening, voted for him, as representative, on the succeeding Monday; or that anything was said by Mr. Williams, or by any one for him, that those who had been treated would be expected to vote for him.
The committee are all satisfied, from the evidence offered on the part of those who petitioned against Mr. Williams’s right to hold his seat, as well as from the admission of Mr. Williams himself, that he called, for the liquor and paid for it; and they would have entertained a much higher opinion of his course, if he had, at once, frankly admitted the whole facts in the case, rather than resorted to the evasion of pretending to have paid only for the candles, used in lighting the hall, a *385part of one evening, when the exoense of the lights could not probably have exceeded one-eight part of the sum, which he admits he actually paid. The committee cannot reprobate, in too strong terms, the practice of treating, either before or after an election; and, while a penalty is provided for doing this at all military elections, they cannot perceive any good reason, why the same or increased penalties should not be attached to the same practice at elections of members of the general court.
The frauds that are practised at ballot boxes, and on the ballot boxes, are believed to originate, in a great measure, in the free use of ardent spirits; and, if the security and the perpetuity of our republican institutions depend upon the purity of elections, all the avenues to the ballot boxes should be most seduously guarded against the approach of any influences that can tend to corrupt the elective franchise.
Having said thus much in relation to the reprehensible practice, in which Mr. Williams is clearly proved to have indulged, the question arises, whether he has been guilty of the charge of bribing persons to cast their votes for him, and in applying the constitution and adjudged cases of controverted electionns, to which they were referred, to the facts in the present case, the committee have come to the conclusion, that they do not find sufficient ground to justify them in reporting against his right to a seat, and they therfore unanimously recommend that he be entitled to retain his seat."
This report was agreed to.1
61 J. H. 200, 201, 214. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502545/ | The justices of -'the supreme judicial court, having been requested by a joint order of the two houses, to give their opinion on certain questions (which are sufficiently stated in the answer) touching the right of representation on the division of a town, or the incorporation of a new town, in answer thereto, made the following communication
“The undersigned, the justices of the supreme judicial court, having considered the questions proposed to tneni, tnere-nijon ask leave respectfully to submit the following opinion :—
It aopears to have been, the manifest intention of the twelfth article of amendment to the constitution to provide for an equal representation of the citizens, by a distribution of representatives amongst towns, according* to the number of ratable polls, at fixed periods of ten years. The system is so arranged, that the power of each town, to choose one or more representatives in any one year of the ten years, may depend upon what it has done in. some other year of the period. In. other words, the power of a town to choose a representative during the later years of the period, may depend on the fact of their having exercised, or forborne to exercise their power, during the earlier years of the period. There is no authority reserved to the legislature, or to any branch of the government, to take any new* census of polls, or to make any new distribution of the number of representatives, which each city, town, or district may choose; and to fix the number of years in which they may choose during a period of ten years. It follows, as a necessary consequence, that the distribution, made at the commencement of each period of *387ten years, must remain fixed and unalterable during such period, and until a new decennial census of polls is taken, conformably to the constitution. The same conclusion results from the express provisions of the article of amendment. This article declares that the governor and council shall ascertain the number of representatives, which each town and representative district is entitled to elect, and the number of years within the period of ten years, in which each city, town, and district may elect an additional representative ; and when a town has not a suliieient number of polls to elect a representative each year, then how many years, within the ten years, such town may elect a representative. This is to be done at the commencement of each period of ten years. It further declares, that the number of representatives which each city, town and representative district may elect, thus ascertained and determined, shall remain fixed and unalterable for the period of ten years. That winch the constitution declares unalterable cannot be changed by law.
We are therefore of opinion, in answer to the first question, that 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 taken, after its incorporation.
In answer to the second question, we are of opinion, that it is within the constitutional power of the legislature, when incorporating a new town, consisting of territory set off from another town, or from two or more towns, to provide by law, that the new” town, or Hie inhabitants of that part of the new town which was taken from the old town, shall be and remain a component part of the town or towns to which such territory originally belonged, for the purpose of electing the representatives to which said original towns were entitled by the preceding census of polls, until a new decennial census of polls shall be taken.
There may be some practical inconveniences in such an arrangement, arising from the difficulties of preparing lists of *388voters, warning meetings, attending at different places, for different elections on the same day, and the lilac These, however, are rather objections of inconvenience in the exercise of the right, than any constitutional impediment to the power of the legislature. The object is to provide for the representation of the citizens, and not of the towns. As it is manifestly within the power of the legislature to leave each town as it is, during the period of the tea years, for all purposes whatever, it seems not inconsistent with their power, to provide that all the inhabitants now composing it shall continue to act together, for one purpose, — that of electing representatives, — and yet may be otherwise arranged into corporations for other municipal purposes.
Of the convenience and expediency of such an arrangement, and the detailed provisions which it may require, the legislature will judge. We are of opinion, that it is within their constitutional authority to make it.
LEMUEL SHAW, SAMUEL PUTNAM, S. S. WILDE, MARCUS MORTON, CHARLES A. DEWEY.
Boston, 29Th March, 1839.” | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502546/ | Two certificates were returned from the town of Mendon, by one of which it appeared, in the usual form, that Laban Bates was duly elected. The other certificate was made the subject of a special report of the committee on elections, and the election of the members thereby returned was also petitioned against by Benjamin Davenport and others, legal voters of Mendon. The following is the report of the committee: —
“ The committee on elections find, that one of the certificates from the town of Mendon is in the following words:—
‘ The subscribers, a minority of the selectmen of the town of Mendon, hereby certify that, at a meeting of the inhabitants of said town, held this twenty-sixth day of November, in the year one thousand eight hundred and thirty-nine, pursuant to adjournment from the twenty-fifth of said November, instant, Leonard Taft and Caleb Thayer, being inhabitants of said town, were chosen to represent them in the general court to be hoiden on the first Wednesday of January next. Dated at Mendon, this 26th day of November, in the year one thousand eight hundred and thirty-nine.
DAVID DAVENPORT, } Selectmen
JARED BENSON, ) of Mendon.’
‘Mendon, Nov. 27, 1S39. I have given notice to the above named Leonard Taft and Caleb Thayer, of their being chosen representatives, and have summoned them to attend the general court.
DAVID ROSS, Constable of Mendon.’
From this certificate, it appears, that the election of those members took place on the 26th day of November, 1839, which was the day after the fourth Monday of that November. And this committee are unanimously of opinion, that an election of representatives on that day is made void by the following provisions of the constitution : —
‘ The meeting for the choice of governor, lieutenant-governor, senators, and representatives, shall be held on the second Monday of November, in every year; but meetings may be adjourned, if necessary, for the choice of representatives, to the next day, and again to the next succeeding day, *390but no further. But in ease a second meeting shall be necessary for the choice of representatives, such meetings shall be held on the fourth Monday of the same month of November.’
The committee are of opinion, that the meaning of these words is perfectly clear, and certain, and that no adjournment, beyond the fourth Monday of November, of a meeting for the choice of representatives, can be lawful.
It also appears, from the same certificate, that it is signed only by a minority of the selectmen; whereas, it Is required by law, that a majority of the selectmen should preside at the meeting, and that the same selectmen should sign the certificate. This objection might, perhaps, be open to explanation, by evidence ; but the disregard of a precise requirement of the constitution invalidates the election of those members, of necessity. Wherefore, the committee report, that Leonard Taft and Caleb Thayer are not entitled to seats as members of this house.”
After this report had been read in the house, and a time assigned for its consideration, a memorial was presented on behalf of the members, Taft and Thayer, claiming a right to be heard before a committee. The memorial having been read, a motion was made to refer the consideration of it to a committee of one from each county, with instructions to cause the same to be printed; but the memorial and the motion to refer were both disposed of, by being laid on the table, by a vote of 265 yeas, to 239 nays.1
The report was afterwards (on the next day) considered, and agreed to, by a vote of 275 yeas to 193 nays.2
The question, presented in this case, was subsequently submitted to the justices of the supreme judicial court, by an order of the house, for their opinion. The court came to the same conclusion with the house.
62 J. H. 19, 20.
Same, 23. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502547/ | The report in this ease was as follows: — “ The committee on elections report, that Ebenozer Cole and others, inhabitants of the town of Adams, petition against the right of Ezra D. Whitaker, returned a member from Adams, to a seat in this house, on two grounds: — 1st. That a motion to adjourn the town-meeting wherein he was elected was made and seconded, but was not put: 2d. That the poll was continued open until after sun-down.
On tlie first point, the evidence offered entirely failed to prove the allegation ; it being clearly proved, that the motion was duly put and decided in the negative.
On the second point, the fact was admitted by the sitting member. But as there was no allegation or suspicion of fraud or injustice, and no doubt, that the sitting member had a majority of the ballots cast, the committee are not of opinion, that the circumstances of the case are' sufficient to vacate his seat; and they therefore report, that the petitioners have leave to withdraw their petition.”
This report was agreed to.1
62 J.H. 176, 185. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502548/ | .A petition was presented against the election in this town, in which it was stated, that at the election therein for governor, lieutenant-governor, senators and representatives, the “ votes for their public servants were collected of individuals outside of the hall, in the streets, by constables, and afterwards de*392posited in the ballot box. by said constables, contrary to the statute, which expressly provides and declares, that ‘ votes shall be deposited in the ballot box by the voter in person/ and in open town-meeting.”
This petition being referred to the committee on elections, they reported that the petitioners had not offered any evidence of the allegations therein, and, so far as the committee conk! learn, did not intend to do so: and the committee therefore reported, that they have leave to withdraw their petition.
The report was agreed to.1
62 J. H. 150, 158. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502643/ | Journal Entries: (i) Nov. 7, 1815: libel filed; (2) Nov. 8, 1815: libel filed; proclamation ordered, time fixed for trial, notice ordered published; (3) Dec. IJ, 1815: order for publication amended; (4) May 21, 1816: evidence heard, property condemned, sale ordered, notice of sale ordered.
Papers in File: See Transactions 1814-1824, I, 338, case A-42.
File No..... | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502968/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
Two questions are before the Court: 1) whether the Appellees’ motion to dismiss this appeal should be granted; and 2) whether Appellant Toyo-Cinema’s motion to modify the record on appeal should be granted.
I
Hsaio Li Lee and Yu Te Lin, Taiwanese nationals, and Toyo-Cinema, a Japanese corporation, brought this automobile accident case against the Appellees, Stanley Tallman and Peabody Coal Company (“Tallman”), in the Tuba City District Court and simultaneously in an Arizona state superior court. On December 28, 1994, the district court dismissed the suit for failure to serve the complaint within six months of filing. The sole Appellant, Toyo-Cinema (“Toyo-Cinema”), appealed the dismissal order and simultaneously filed a motion in the district court requesting reconsideration of the dismissal. Tallman then filed a motion to dismiss the appeal on the ground that Toyo-Cinema is a “non-jural entity” and therefore not entitled to bring an action in Navajo Nation courts.
*192Toyo-Cinema filed a separate motion requesting to add court documents from the Arizona case to the record before this Court. The state superior court dismissed its action for lack of subject matter jurisdiction.
II
Tallman claims in his motion to dismiss that Toyo-Cinema lacks standing to bring this action because it is not authorized to do business in the Navajo Nation pursuant to section 174(a) of the Navajo Nation Corporation Code. That section prohibits a foreign corporation which is transacting business in Navajo Indian Country without authorization from filing suit in Navajo Nation courts. Toyo-Cinema argues that Tallman cannot raise this issue on appeal because he did not raise it in the district court. Tallman first raised the “non-jural entity” issue in his response to Toyo-Cinema’s motion to reconsider the district court’s order of dismissal.
This case is similar to the case of Joe v. Atkins, 6 Nav. R. 55 (1988). In both cases, the appellants concurrently filed a motion for reconsideration with the district court and a notice of appeal with this Court. In Joe, id. at 55, and in Benally v. Holtsoi, 6 Nav. R. 35, 36 (1988), we held that the motion for reconsideration in the district courts was abolished on the effective date of the Navajo Rules of Civil Appellate procedure (March 1, 1987). We eliminated motions for reconsideration because they produced exactly the kind of procedural confusion present in this case. Benally, id. at 36. Petitioning the district court with a motion for reconsideration at the same time appellants filed notices of appeal with this Court created jurisdictional problems which were best avoided by abolishing the motion for reconsideration. Id. Accordingly, Toyo-Cinema’s motion for reconsideration is not a proper motion in the district court.
Nevertheless, we examine the contents of Toyo-Cinema’s motion for reconsideration to determine whether it can be recognized as a post-trial motion using one of our rules. If such recognition is given, this Court must dismiss the appeal on jurisdictional grounds to permit the district court to decide the motion. N.R.C.A.P. 8(b). We find that Toyo-Cinema’s motion, which is primarily concerned with service of process, does not fit into any of the post-trial motions permitted by either the 1989 Navajo Rules of Civil Procedure or the 1987 Navajo Rules of Civil Appellate Procedure. Permissible post-trial motions include motions for judgment notwithstanding the verdict, to amend or add findings of fact, to alter or amend the judgment and for a new trial. Nav. R. Civ. P. 47(b), 59, 59.1; N.R.C.A.P. 8(b)(l)-(4). Toyo-Cinema’s motion for reconsideration has no validity.
Finally, Tallman did not raise the “non-jural entity” issue as a defense in his answer to the complaint or at any time prior to the dismissal of the complaint. Having raised the issue in his response to the motion for reconsideration does not qualify as having raised it in the district court. This Court follows the rule that issues not raised in the district court may not be raised for the first time on *193appeal. Gudac v. Marianito, 1 Nav. R. 385, 394 (1978); PC&M Constr. Co. v. Navajo Nation, 7 Nav. R. 72 (1993). Thus, the “non-jural entity” issue has not been preserved for appeal.
For these reasons, we deny Tallman’s motion to dismiss the appeal.
III
Toyo-Cinema seeks to include some court documents from the Arizona case in the record before this Court. The law requires us to decide cases on appeal using the record as established in the district court. 7 N.T.C. § 803 (1995); N.R.C.A.R 9. “The record on appeal consists of papers, exhibits, and other objects entered into evidence with the district court....” PC&M Constr. Co., id., at 72. Thus, an appellate record consists of evidence admitted in the district court, not the trial court of another jurisdiction. Id. The district court record does not contain the documents in question and they cannot be added to the record on appeal. We deny Toyo-Cinema’s motion to modify the record.
IV
In summary, we deny Tallman’s motion to dismiss the appeal and ToyoCinema’s motion to modify the record on appeal. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502549/ | The committee on elections, i.o whom this case was referred, reported thereon as follows : —
“ The petition of Martin Bullard and others, inhabitants of Westborough, against the right of Otis Brigham and Nahum Fisher to seats in this house, alleges two grounds on which it denies the right of those members to their seats.
The first is, that the check list was not used at the election, and that the votes were not checked oil'.
The second is, that the polls were not kept open daring the time required by law.
The member, who presented the petition, appeared before the committee, and, stating that no evidence would be offered in support of the second ground, insisted only on the first.
The sitting members fully admitted that no use whatever was made of the check list at the election.
As far as the committee could leam, there was no allegation or suspicion, that the cheek list was disused from improper motives, or that it had caused the reception of an illegal vote, or the rejection of any legal vote.
*393The law of last year, c. 42, § 5, provides, that no vote shall be received, ‘ until the name of the person offering the same shall have been found upon the list, and checked by the presiding officers, or by some one appointed by them therefor.’
The committee regard this provision as one which is calculated to prevent mischief, and as open to no objection; and the 6th section of the same law provides, that ‘ if any selectman, or other town or city officer, shali wilfully neglect or refuse to perform any of the duties required of him by the third chapter of the Revised Statutes, or by the provisions of this act, he shall forfeit a sum not exceeding two hundred dollars;’ But we regard this statute, mainly, as directory to the town officers. And we are of oninion, that however justly a neglect of these directions may be visited upon the town officers who may be guilty thereof, the town should not lose its right of representation thereby, if there were no fraud. Wherefore the committee report, that the petitioners aforesaid have leave to .withdraw their petition.”
This report was agreed to.1
62 J. H. 36, 59, 71. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502551/ | Too report in this case was as follows '
« The committee on elections find that Ezra Beaman and others, inhabiiaiits of West .Boylston, petition against the rffiht of Silas 'Walker and Benjamin F. Keyes to scats in this house, on the ground, that the warrant, calling the town-rneet-inn sit which they were elected, did not conform to the provisions on. i re r;.n , ww.:,
A certified copy of the warrant was exhibited, which the sitting members admitted to be correct; and the member who offered the peí ilion stated that no other evidence would be offered.
*395The inhabitants were summoned to meet ‘ at one o’clock in the afternoon,’ ‘ to bring in their votes to the selectmen, for a governor, and lieutenant-governor of the commonwealth, and for six senators, on one ballot, for the district of Worcester for the year ensuing. Also to determine the number of representatives said town will choose for the present year. Also to choose one or more representatives to represent them in the general court.’ And the warrant then goes on to specify other subjects to be attended to.
From the above statement it is apparent, that the warrant does not specify (otherwise than by implication, if at ali) the hour at which the polls would be opened. But there is no allegation or suspicion of fraud in this case, or of any injurious result arising from this omission ; and the committee are of opinion, that it is not sufficient to vacate the seats of the sitting members.
The committee therefore report, that the petitioners have leave to withdraw their petition.”
This report was agreed to.1
62 J. H. 59, 71. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502552/ | The election of Minot Thayer and Joseph Richards returned as members from this town, being controverted by John Hay*396•ward and others, the committee on elections reported thereon separately.
The report relative to the election of Minot Thayer, was as follows:—
“ John Hayward and others, inhabitants of Braintree, petition against the right of Minot Thayer, Esq., to a seat in this house, on two grounds :
The first was, that he was elected at a town-meeting held on the fourth Monday of November, and the town adjourned its meeting of the second Monday to the next day, but did not adjourn again to the next succeeding day. And the petitioners contend, that no town can lawfully hold a town-meeting for the choice of representatives on the fourth Monday of November, unless they have previously tried to effect an election on each of the three preceding days allowed by the constitution. But the committee think that there is no force in this objection.
The second ground of objection to this election rests upon the notice of the town-meeting. The law on this subject is as follows:—
‘All town-meetings, for the election of representatives in the general court, shall be notified by the selectmen of each town, in the manner legally established in such town, for calling other town-meetings.’ Rev. Sts. c. 5, § 5.
There has never been a vote or by-law of this town, establishing the number of days which must intervene between the notice and the meeting; nor any vote or by-law recognizing and establishing any usage. But the petitioners contend, that there is in that town a usage of equal force with law.
On this point it was proved :—
1. That the petition for the town-meeting was handed to the selectmen on the morning of the third Monday of November ; that they delivered the warrant to the constable, with directions for him to post, forthwith, four copies of the warrant in the four places where such notices were usually posted; and that he did so post the same between 4 P. M. and 8 P. M. of the same day.
*3972. It was further proved, that for some years, (one witness testifying to two, another to five, and another to fourteen years,) notices for the governor’s election had been posted fourteen days before the meeting; notices for other meetings about ten days, though sometimes more and sometimes less, and neither witness recollected an instance of less than seven days.
Upon these facts, the committee, are of opinion, that, as every town has bylaw a right to regulate and fix precisely, by a by-law or specific vote, the length of the notices for its meetings, — where the town neglects or refuses so to do, 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 the law; and to know also, clearly and certainly, when the town-meeting conformed to and when it violated the usage. And the committee are of opinion, that no such usage was shewn in this case, and no clear violation of any established usage.
The committee therefore report, that the said Minot Thayer is entitled to his seed in this house.” _
The report relative to the election of Joseph 'Richards, was as follows :—
“John Hayward and others, inhabitants of Braintree, petition against the right of Joseph Richards, Esq., to a seat in this .house, on the ground that his election is void through uncertainty. The parties were heard by their counsel; many witnesses called on both sides; and the case fully investigated and ably argued.
The record of the town being produced, it appeared, that the meeting of the second Monday of November having been adjourned over to the next day, it vyas. voted at the adjourned meeting to choose two representatives; and after one unsuccessful balloting, the record goes on as follows: —
1 Voted, to proceed to the second balloting.
Voted, that the polls be closed in two minutes.
The time haying expired, it was Toted to close the polls.
*398The whole number of ballots given in was three hundred and ninety, - - 390
Alvah Morrison had one hundred and eighty-seven votes, - 187
Dr. Jacob Richards had one hundred and sixty-nine, - 109
Joseph Richards, Esq., had two hundred and one, - 201
Minot Thayer, Esq., had one hundred and twelve, ------ 112
Capt. Samuel French had nine, --------- - 9
Amos W. Stetson had seven, - -- -- -- -- - 7
Judson Stoddard had seventy-four, - -- -- -- -- 74
Adjt. Samuel Hayden had two, --------- - 2
Benjamin Stevens had two, -------- - 2
Joseph R. Frazier had two, - -- -- -- -- - 2
Gol. Freeman "White had four, - -- -- -- -- - 4
Col. Otis Wild had forty-four,.4T
Joseph Richards was declared (by the moderator) to be chosen.
Voted, to dissolve the meeting.’
If the votes cast for all the candidates, as above stated, be added together, they amount to 813. If every ballot had the names of two persons, there must have been at least 407 ballots; and if there were any single votes, the number of ballots must of course have been greater. It follows, therefore, that the whole number of ballots, by this statement, is more than 390, and more than twice 201, which was the number cast for Joseph Richards.
Here, then, is a case where the whole number recorded differs from the number found by adding together the recorded details. The committee doubted, whether they were not bound to the practice which in such cases rejects the whole number. If that were done, it is obvious that Joseph Richards had not a majority of the ballots.
The question then occurred whether the committee could receive evidence to explain this record, or to supply its deficiencies. On this point, the committee are of opinion, that where the record of a town-meeting is intelligible, and consistent with itself, and where it contains every material statement required by law, then the record is itself to be taken as the best evidence, and must stand unless impeached as fraudulent. In this case, however, the record is not consistent with itself; upon its face there appears to be an important ambiguity; and the committee concluded, that it was proper to let in evidence to explain the record, if possible.
*399To this course both parties assented; and the town clerk and selectmen were examined. But it was found that no explanation whatever could be given. Almost immediately after the meeting was dissolved, the selectmen discovered that they had made a mistake somewhere ; but they did not know, and do not now know where the mistake exists, or how or by whom it was made. No witness knew, or stated any fact from which the committee could infer with any certainty, or even any clear probability, whether the whole number of ballots as first stated is right; or whether the whole number, as obtained by adding and dividing the details, is right; or whether, if the whole number is stated aright, and the details are wrong, the error in the details falls upon the statement of the votes cast for Joseph Richards, or of those cast for some other person or persons.
Under these circumstances, the committee regard this election as void for uncertainty; and they therefore report,
That Joseph Richards, Esq., is not entitled to a seat as member of this bouse.”
These reports were severally agreed to.1
62 J. H. 91, 111. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502553/ | The report of the committee on elections, in this case, was as follows :—
“ Abel Bliss and others, inhabitants of the town of Wilbra-ham, petition against the right of John Carpenter to a seat in this house, on the ground, that that gentleman had not a majority cf the ballots given in.
On the part of the sitting member, a paper was exhibited to the committee, which was proved to be a transcript from the record. This paper contained the following statement of *400votes for representatives, and nothing more on this subject, namely:—‘ For Stephen Stebbins, 186 votes; John Carpenter, 160; Pliny Merrick, 143; Samuel B. Stebbins 144; J. W. Rice, 1.’
It farther appeared to the committee, that the original record of the town-meeting contained no statement of the whole number of ballots, and that, in fact, the ballots were not counted in order to ascertain the majority, but that the selectmen arrived at this conclusion in a different way.
A question was then made to the committee, whether they could go behind this record, and receive evidence as to the whole number of ballots. On this point the committee were entirely satisfied, that, as the record wholly failed to make any statement respecting the whole number of ballots, it was perfectly proper to supply this important deficiency by evidence. The committee have already endeavored to state, in one of their reports respecting the election in Braintree, their views of the true principles which protect a record. They would re: peat briefly, that where a record is intelligible, consistent and clear, and where it contains all the material statements required by law, it is itself the best evidence, and is not to be controlled by inferior evidence. But where the record is inconsistent and ambiguous, or where it is deficient as to a material fact, there it is proper to receive evidence to explain the ambiguity, or to supply the deficiency.
The committee therefore went into evidence as to the whole number of ballots, and it was distinctly proved to them, by one of the selectmen of Wilbraham, and it was admitted by the sitting member, that ballots were cast as follows :—
There were one hundred and sixty ballots for Stephen Stebbins and John Carpenter, 160
There were one hundred and forty-three ballots for Samuel B. Stebbins and Pliny Merrick, - 143
There were twenty-six single ballots for Stephen Steb-bins only, ...... 26
*401There was one single ballot for Samuel B. Stebbins, - 1
There was one single ballot for Jesse W. Rice, - 1
Making the whole number of ballots, ... ggp
From these facts, it is perfectly obvious, that the number of ballots necessary for a choice is 166; and as the name of John Carpenter was borne only on 160 ballots, lie was not elected.
It is but just to the selectmen to give their own explanation of the manner in which the mistake occurred. They state that they were not acquainted with the provisions of the Revised Statutes on this subject; the circular issued to the towns from the secretary’s office, to instruct the town officers in this particular, was accidentally prevented from reaching them until long after the election. They therefore proceeded in a manner formerly very prevalent; they added all the votes together, and as there were two persons to be chosen, they divided the whole sum by four and added one to ascertain the number necessary for a choice; and. calculated in this way, Mr. Carpenter was declared to be elected. But the illegality of this mode of computation is perfectly obvious.
The committee therefore report, that John. Carpenter, Esq., is not entitled to a seat in this house.”
This report was agreed to,1 and the house refused, by a vote of 167 to 176, to issue a precept for a new election in Wil-braham.2
62 J. H. 91, 111.
Same, 138. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502555/ | The report in this ease was as follows :—
“ The committee on elections report, that Eliab Leland and others, inhabitants of Upton, petition against the right of Elijah Warren and Nahum W. Holbrook to seats as members of this house, on the ground of the illegality of the proceedings at their election ; and particularly,
1. Because there was no article in the warrant for the meeting to elect representatives.
2. Because the, poll was not opened at the time and place appointed by the selectmen for the meeting.
The parties were heard before the committee at several sittings, and a great amount of evidence was introduced on both sides.
From this evidence it appeared, that the warrant contained the following article; and no other respecting the election of representatives:—
‘ And also to determine the number of representatives said town will choose to represent them at the general court, to be held at Boston, on the first Wednesday of January next.’
The meeting was called ‘ to meet at the public meetinghouse in said-town, at ten o’clock in the forenoon.’ The meeting was called to order in the meeting-house at eleven. Soon after, a motion prevailed to adjourn to Union Hall. This was a hall built and owned by individuals, about ten or twelve rods from the meeting-house. The town-meetings had been-always held in the meeting-house, until the half was.*404built, about one year ago. Since then the town-meetings had been held in Union Hall, and in all instances but one, by adjournment from the meeting-house. The reason for these adjournments was not very clear, but there was some indistinct evidence tending to show, that the objection to the use of the meeting-house arose from the injury caused by the town-meetings, and also some difficulty about wanning it. It was proved that Union Hall was perfectly convenient for town-meetings.
At Union Hall, the polls were opened for governor, lieutenant-governor, and senators. A motion was made not to send representatives. The house was divided, and counted by the constable and one of the selectmen. The constable returned 86 for and 85 against the motion ; the selectman returned 83 for and 85 against. The chairman, uncertain what to do, delayed declaring the vote for some time, while the votes for governor were being given in; but finally declared the motion carried. The voting for governor went on, and between half-past three and four P. M. a motion prevailed to continue the poll open half an hour longer. Before the half hour expired, a motion ‘ to adjourn to ten o’clock the next day, for the purpose of reconsidering the vote not to send representatives,’ was made, and put, and carried. Some witnesses stated, that they heard the motion only as a motion to adjourn to the next day; but that they learnt the purpose of the adjournment immediately, by inquiry of those who stood near them.
The meeting being opened the next morning, the chairman asked if there were any objections to the meeting, as he wished them stated and considered then, if any there were. But no objections were made. The poll was opened, the votes were received, and the sitting members had a majority of the whole number of ballots cast. The vote was the largest ever known in the town. There was no evidence, and indeed no allegation, of any fraudulent intent or unfair practices, on either side.
The committee are not satisfied, that these circumstances constitute a .sufficient reason for declaring the seats of the sit*405ting members vacant. And they therefore report, that the petitioners have leave to 'withdraw their petition.”
The above report was agreed to.1
62 J. H 91, 111. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502556/ | The committee on elections reported, “That Charles Partridge and others, inhabitants of Boston, petitioners against the right of Eliphalef P. Hartshorn to a seat in this house, appeared before the committee by their counsel, and stated, that, by an understanding between the parties, the petition was to be withdrawn.
The committee therefore report, That the request of the petitioners be granted, and that they have leave to withdraw their petition.”
This report was agreed to.2
Same, 82, 111. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502558/ | The justices of the supreme judicial court, having been requested by the bouse of representatives to give their opinion on the question, whether a meeting for the election of representatives, on the fourth Monday of November, could be adjourned to a succeeding day, addressed the following communication, in answer thereto, to the house: —
“ The undersigned, the justices of the supreme judicial court, have taken into consideration the question proposed to them by the honorable house of representatives, in the following words, to wit: ‘ Does the constitution admit of an adjournment of the 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?’ And in answer thereto they respectfully submit the following opinion: —■
This question arises upon the amendment of the constitution, which was adopted in 1831. The leading object of that amendment was, to alter the time of the commencement of the political year, from May to January; and the probable practical result anticipated from that alteration was, that there would ordinarily be but one session of the legislature, instead of two, in each year. As incidental to this alteration, it became necessary to alter the time at which the annual elections should be held. The whole of the provision upon this subject is in the following words: ‘The meeting for the choice of governor, lieutenant-governor, senators, and representatives, shall be held on the second Monday of November in every year, but meetings may be adjourned, if necessary for the choice of representatives, to the next day, and again to the next succeeding day, but no further. But in case a second *408meeting shall be necessary for the choice of representatives, such meetings shall be held on the fourth Monday of the same month of November.’
From this provision it seems obvious, that it was not intended by the framers of the constitution, that there should be any adjournment of meetings, for voting for governor and senators ; for although there is no express restriction of this power, yet there is such a restriction by a clear and necessary implication. The provision, after a direction that the meeting shall be held for several purposes, that it may be adjourned for one of those purposes, carries a clear implication that it cannot be adjourned for the other purposes. This is no otherwise important to the present question, than as it shews the understanding of the framers of the constitution, that towns had no authority, under their general organization as corporations, to adjourn meetings held for the purpose of these elections.
But the next clause is more explicit in directing that meetings may be adjourned, if necessary, for the choice of representatives to the next day, and again to the next succeeding day, but no further. Here is not only an implication, arising from the provision for a very special and limited power of adjournment, that a general power did not exist; but there are express words of restriction upon any other power of adjourning the meetings required to be held on the second Monday of November, for the choice of governor, lieutenant-governor, senators, and representatives.
Besides, if there were no restriction on the power of towns, to adjourn meetings for the choice of representatives, meetings might be continued by adjournments, quite up to the time of the meeting of the legislature. But we think it was the obvious policy of the constitution to require, that the representatives should be chosen at a certain fixed time, previous to the meeting of the legislature. The provision of the former constitution, c. 1, § 3, art. 5, was, that the members of the house of representatives should be chosen annually in the month of May, ten days at least before the last Wednesday in that month, which was the commencement of the political year. *409This policy was not apparently intended to be changed by the amendment, but to be confirmed and carried into effect by other provisions, limiting the times within which representatives should be chosen. Considering, that in future there would be but one session of the legislature, within the year, commencing with the beginning of the political year, there was good reason for fixing a longer time than formerly between the choice of representatives, and their entrance upon their duties, to give them time for preparation. No such limit is fixed, unless it is done by the provisions cited.
Further, it seems manifest, that it was the intention of the framers of this part of the constitution, to provide for the choice of representatives, in a manner as uniform in point of time and mode, of conducting elections, as the different modes of organization of the different municipal corporations, composed of cities, towns, and districts, would admit. At the time this amendment was adopted, provision had already been made, by the amendments of 1820, for the incorporation of cities. Boston had already been incorporated and organized as a city, and it was contemplated that other large towns would soon be thus organized. Salem -and Lowell were thus organized, within a few years after. By the mode of conducting elections in cities, the polls are opened in wards, where the people give in their votes; certificates of these votes are to be thence transmitted by the ward officers, to the mayor and aldermen, by whom they are to be examined, the results ascertained, and the returns made. The meeting of the voters in wards, though admirably well devised and adapted to ensure order, regularity, celerity, and convenience in elections, is not a deliberative body for any purpose, and they are vested with no power to discuss or decide upon any question. They have, therefore, no power to adjourn; and, besides, as the votes are to be transmitted to a central body, in order to ascertain the result, it would be impossible for the citizens of any ward to know, at the close of the election, whether a choice of representatives had been made or not. Had they, therefore, the power of voting on any subject, they could not upon this, *410From this view of the organization of cities, if is quite maní fest, that meetings of the inhabitants could not be adjourned to complete the choice of representatives. In order, then, b provide, that the voters of cities might have a second opportunity to choose their representatives, it became necessary to make some provision for a second meeting; and when making such provision, we think it was the intention of the framers of the constitution, to make a uniform provision, applicable to towns and districts, as well as to cities; fixing a day for the second meeting, as they had already fixed a day for the first, beyond which, if cither corporation failed of choosing their representatives, none could be chosen.
But another and a principal ground of argument is found in the difference of the provisions, in regard to the first and second meeting. The provision in regard to the meeting on th second Monday of November is, that for the choice of repre sentatives, the meeting may be adjourned to the next, and again to the next succeeding day, but no further. This, fc reasons already adduced, we think, excludes a general or incidental power of adjournment, and limits the power of adjournment, to the precise cases in which the power is given. Bat the provision in regard to the second meeting is, that if a second meeting is necessary, it shall be held on the fourth Monday of the same month of November, without any provision for adjournment. It is true there are no negative words, such as 1 and not afterwards,’ or anything equivalent. But it being manifest, that no general or incidental' power of adjournment for the purpose of choosing representatives was understood to exist; considering that when it was intended to confer a limited power of adjournment, it was given in express terms; the fai - that no express power was given for adjourning the second meeting carries with it a strong implication, that none was intended to be conferred.
And there appears to be good reason for this distinctío; . By the organization of towns, (some very large.) all the voters must meet together at one place; at the first meeting they have many other elections to conduct; they meet as a deliber*411ative body, and may discuss questions and pass votes upon various subjects, especially upon the question whether they will send representatives, and how many; they may have several successive ballotings at the same meeting, until they make a choice. This great amount and pressure of business may prevent a town from completing their choice of representatives on the first day, when by having a power to adjourn from day to day, so as if necessary to extend to the third day, the election will he completed without the necessity of calling a second meeting. But when a second meeting is called at the interval of two weeks, the case is of quite a different character. The sirsgle purpose is to choose representatives. The voters have all had time and opportunity to consult and deliberate, and madure their opinion respecting candidates. Under these circumstances they will be likely to come prepared for a decisive ballot. Besides, by fixing the fourth Monday of November as the last day upon which representatives for the ensuing political year can be elected, the policy of the constitution is carried out, that the election of representatives shall be closed, both theoretically and practically, on a fixed day, by a rule affecting alike the cities, towns and districts of the commonwealth. It was intended, we think, that each town should elect representatives according to its own judgment, and its own views of fitness and expediency in respect to public interests, without regard to the elections made in other towns, and without waiting till the elections are necessarily closed in other municipal corporations, as it might do if no day were definitely fixed. This policy of closing the representative elections on a given day throughout the commonwealth was apparent in the previous constitution, and we think it was intended to be preserved in the amendment; and if this was so, the fourth Monday of November must be considered as such day.
These considerations are perhaps not entitled to great weight; they would be entitled to none, against a plain provision. But they may deserve some consideration as indicat*412ing the general intent of the framers of the constitution, and in expounding its provisions when the language is not explicit.
But we rely mainly on the terms of the amendment itself; we there find, that when a power of adjournment is intended to be conferred, it is given in a very precise form, and to a very limited extent. Then, when it provides in the same clause, that, in ease a second meeting is necessary, it shall be held on a given day, without providing for any adjournment, the natural and reasonable construction is, that it shall be held and closed, and the election finished, on that day.
A question occurred to us on the clause, ‘ but meetings may be adjourned, if necessary, for the choice of representatives, to the next day,’ &c., whether the term ‘meetings’ could not be applied to all meetings to be held for the choice of representatives, as well those provided for in the subsequent part of the amendment, to be held on the fourth Monday of November, as to those previously provided for to be held on the second Monday of November. Considering this question with some care, we are of opinion, that such a construction would be forced and unnatural, and could not have been the true intent of the framers of this amendment. The word ‘meetings’ in this place follows immediately after the provision, in the two preceding lines, for meetings for the choice of governor, lieutenant-governor, senators and representatives, on the second Monday of November, and then directs that meetings may be adjourned for one of these purposes; and the first and most obvious reference is to ‘ such meetings.’ or ‘ those meetings.’ And further, the word ‘next day’ has some significance, it is a relative word,the question is ‘next to what?’ and the natural answer seems to be, next to the second Monday of November, being the day last before mentioned. Then again the next sentence begins with the disjunctive conjunction ‘but,’ and introduces a new provision, in case the former meetings, with their two adjournments, shall have proved unsuccessful, for a distinct and independent original meeting, to be afterwards held. We think, therefore, the true construction is, that the *413term ‘ meetings,’ in the clause providing for adjournments, applies to first meetings for the choice of governor, senators, and representatives, and does not extend to the second meetings afterwards directed to be held on the fourth Monday of November, for the choice of representatives only.
These are some of the principal grounds and reasons for the opinion, which we have now the honor to submit. That opinion, is, that the constitution does not admit of an adjournment of the 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. 1
LEMUEL SHAW, SAMUEL PUTNAM, S. S. WILDE, CHARLES A. DEWEY.
Boston, 17th Feb., 1840.”
62 J. H. 323. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502559/ | An order was adopted in the house1 on the 10th of March, for taking the opinion of the justices of the supreme judicial court, upon the following questions : — •
“ Has every male inhabitant of this commonwealth, who is more than seventy years of age, and has resided within the state one year, and within the town in which he may claim a right to vote, six months next preceding any election of town, county, or state officers, &c., but has not been taxed within two years next preceding such election, a right to vote at such elections'?
If the discretion of the assessors is to be applied in reference to those who are above seventy years of age, and are possessed of property, what is the rule which is to govern in those cases, where such persons would be liable to pay poll taxes, were it not for the limits of age, assigned by the first section of the seventh chapter of the Revised Statutes ? ”
*414■ This order was afterwards reconsidered, and the questions therein referred to a special committee, composed of the committees on the judiciary and on probate and chancery,1 who reported thereon2 the following opinion: — .
“ We think that persons more than seventy years of age, being destitute of taxable property, who would be assessed a poll tax, but for the exemption by reason of age, are entitled to vote in the election referred to, being otherwise qualified. But, persons more than seventy years of age, having taxable property, which the assessors in their discretion exempt from taxation, by reason' of age, infirmity or poverty, are not entitled to vote in such elections.”
62 J. H. 345.
Same, 420. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502560/ | The committee on the judiciary having been instructed,3 by an order of the house, “to inquire whether any, and, if any, what further legislation is necessary to secure the right of suffrage to citizens residing in towns where no state or county tax is assessed,” reported thereon as follows:—
*415"That they have examined this subject with the care which its importance demanded, and they have now the honor to lay before the house the result at which they have arrived.
The order directs the committee to inquire, whether any further ‘legislation’ upon this subject is necessary; and if they were confined to a literal construction of the order, it would be sufficient for them to report, that the right of suffrage, being secured to the citizens of the commonwealth by the constitution, no legislation could remedy any infringement of that right — nothing short of an amendment of the constitution.
Eat the committee believed, that it was the intention of the mover, and in accordance with the wishes of the house, that they should take a larger view of the question, and state, their opinion on the several cases, which gave rise to the order of inquiry, and of the necessity of any amendment of the constitution.
There are four towns at least in the commonwealth, in which no state or county tax has been assessed within two years preceding the recent election, viz.: Edgartown, Tisbury, and Chilmark, in the county of Dukes county, and Chelsea, in the county of Suffolk. And it has been questioned and debated, whether the inhabitants of these towns were not, therefore, deprived of the elective franchise. The committee believe, that they are entitled to vote and to be represented, for the reasons following:—
The last clause of the third article of the amendments of the constitution contains the following provision : ‘Every citizen, who shall be, by law, exempted from taxation, and who shall be, in all other respects, qualified as above mentioned, shall have a right to vote,’ &e.
The inhabitants of the towns in, the county of Dukes county contend, that they were exempted by law from taxation. And appears, that they were required by law to provide a fireproof building for keeping the county records, and that a sum sufficient for that purpose was accordingly raised by taxation ; but by a resolve of the legislature of April 1,1839, duly approved, they were authorized, instead thereof, to provide fire*416proof safes, and to appropriate the remainder of the money to defray the contingent expenses of the county. The difference in the cost of the articles, which they were first required to purchase, and those which they were authorized afterwards to substitute for them, has left a sufficient sum in the treasury to meet the ordinary wants of the county. And the committee are therefore of opinion, that they were by law exempted from taxation, and were, on this ground, entitled to vote.
In regard to the town of Chelsea, the 14th chapter of the Revised Statutes, section 34, contains this provision : ‘ In the assessment of county taxes, for the county of Suffolk, the town of Chelsea shall not be taxed for county purposes.’ The committee are therefore of opinion, that the inhabitants of that town were also by law exempted from taxation, and were and are entitled to vote, and to be represented under this clause of the constitution.
And the committee would beg leave to express the opinion, generally, that, where no state or county tax has been assessed upon a town, it would be equivalent to an exemption by law from taxation, and that the inhabitants of such town would consequently be entitled to vote.
The committee, therefore, report, that no further legislation is necessary, and they beg leave to be discharged from the further consideration of this subject.”
This report was agreed to.1
Same, 68.
62 J. H. 102, 360. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502561/ | The following opinion was given by the justices of the supreme judicial court, in answer to certain questions proposed *417to them by the house of representatives, touching the rights acquired by a residence on territory ceded by the state to the United States.
“The undersigned, justices of the supreme judicial court, have taken into consideration the several questions hereafter stated, upon which the honorable house of representatives has requested their opinion, by an order passed 6th March, 1841; which questions are of the following tenor: —
1. Are persons, residing on lands purchased by, or ceded to, the United States, for navy-yards, arsenals, dock-yards, forts, light-houses, hospitals, and armories, in this commonwealth, entitled to the benefit of the state common schools for their children, in the towns where such lands are located ?
2. Does such residence exempt such persons from being assessed for their poll or estates, in the towns in which such places are located ?
3. Will such residence, for the requisite length of time, give such persons, or their children, a legal inhabitancy in such towns, or in the commonwealth ?
4. Are persons so residing entitled to the elective franchise in such towns ?
Upon these questions the undersigned ask leave to submit the following opinion :—
It is hardly practicable to give a general answer, applicable to all the cases proposed in the first question ; because the question may depend somewhat upon the construction of the different acts, by which jurisdiction has been ceded by this commonwealth to the United States for various purposes, and these acts differ essentially from each other. For instance, in two acts, comparatively recent, one passed 4th March, 1826, ceding to the United States a tract of land for the erection of a marine hospital at Chelsea, there is an express proviso and reservation, that all persons who may remove on said territory shall be deemed inhabitants of Chelsea, to enjoy the privileges and be subject to the duties of such inhabitants, except that they shall not be liable to serve on juries, or do military duty. Whereas, in the act passed Feb. 20th, 1828, ceding, jurisdiction *418to the United States of another tract in Chelsea, for the purpose of building a naval hospital, there is no such provisio and no reservation, except that common to all those acts, ui concurrent jurisdiction for the service of civil and criminal process. So, different regulations are contained in several acts ceding jurisdiction to the United States, for the purpose of building light-houses, beacons, break-waters, and the like. Perhaps a fuller and more careful analysis would show, that when jurisdiction is ceded for the erection of forts, dock-yards, and works of a purely military and naval character, connected with the defence of the country and operations of war. the exclusive jurisdiction is granted to the United States, with the single exception of service of process issuing under the authority of the state within which such territory is; whereas, if the object of the cession of jurisdiction is of a civil nature, the assent of the state is limited and qualified by such reservations, as the legislature ceding the jurisdiction may think expedient for the safety and convenience of their own citizens.
But we presume, from the nature and form of the questions, that it was not the intention of the honorable house to request an opinion upon all the various acts of cession, by which jurisdiction has been granted to the United States, from the establishment of the general government; these are numerous and various, and an examination of them would require much time and labor. We consider that the questions were intended to apply to the larger and more important establishments, as the navy-yard in Charlestown, and the arsenal in Springfield.
The constitution of the United States, art. 1, §. 8, provides, that congress shall have power to exercise exclusive legislation, in all cases whatsoever, over all places purchased by the .consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. The jurisdiction in such cases is put upon the same ground, as that of the district ceded to the United States for the seat of government; and, unless the consent of the several states is expressly made conditional or limited by the act of cession, the exclusive power of legisla*419tion implies an exclusive jurisdiction ; because the laws of the several states no longer operate within those districts.
The earlier and more important acts of this commonwealth on this subject were that of 1798, c, 13, granting jurisdiction to the United States of Castle Island and Governor’s Island in the harbor of Boston, and a tract of six hundred and forty acres in Springfield, for the purpose of erecting forts, magazines, arsenals, dock-yards, and other needful buildings; and that of 1800, e. 26, granting the consent of the commonwealth to the United States, to purchase a tract of land in Charlestown, described, for the purpose of a navy or dock-yard, or both, and erecting magazines, arsenals, and other needful buildings. The territory of the navy-yard was somewhat extended by the act of 1825, c. 8, but upon the same terms specified in the original act.
The only limitation or proviso in the act of 1800, granting the consent of this commonwealth to the purchase of a tract of land in Charlestown for a navy-yard and other purposes, is this, — that the consent of the state is granted upon the express condition, that this commonwealth shall retain a concurrent jurisdiction with the United States in and over the tract of land aforesaid, so far as that all civil, and such criminal process as may issue under the authority of this commonwealth, against any person or persons charged with crimes committed without the said tract, may be executed therein in the same way and manner, as though such consent had not been granted. The same provision is contained in the act of 1798, e. 13, ceding jurisdiction over Castle Island for a fort, and over a tract of land in Springfield, for an armory and arsenal.
These provisions have been the subject of judicial consideration and decision in several cases. The leading cases on this subject in this state are Commonwealth v. Clary, 8 Mass. 72, and Mitchell v. Tibbetts, 17 Pick. 298. Without stating these cases particularly, we are of opinion, that in cases tvhere the general consent of the commonwealth is given to the purchase of territory by the United States, for forts and dock-yards, and where there is no other condition or reservation in the act *420granting such consent, but that of a concurrent jurisdiction of the state for the service of civil process, and criminal process against persons charged with crime committed out of such territory, the government of the United States have the sole and exclusive jurisdiction over such territory, for all purposes of legislation and jurisprudence, with the single exception expressed; and consequently, that no persons are amenable to the laws of the commonwealth for crimes and offences committed within said territory; and that persons residing within the same do not acquire the civil and political privileges, nor do they become subject to the civil duties and obligations, of inhabitants of the towns, within which such territory is situated.
What would be the effect, were other conditions annexed to the act, granting the consent of the commonwealth to the purchase of territory, and in terms reserving the full concurrent jurisdiction of the state : whether the consent would be deemed legally inoperative, or whether the condition and reservation would be void, or whether the jurisdiction would be deemed concurrent, we give no opinion.
We proceed to apply the opinion thus stated to the questions specifically proposed by the honorable house of representatives.
1. We are of opinion, that persons residing on lands purchased by, or ceded to, the United States for navy-yards, forts, and arsenals, where there is no other reservation of jurisdiction to the state, than that above mentioned, are not entitled to the benefits of the common schools for their children, in the towns in which such lands are situated.
2. We are of opinion, that such residence does exempt such persons from being assessed for their polls and estates to state, county, and town taxes, in the towns in which such places are situated.
3. Understanding as we do, by the terms of this question, that the term ‘ legal inhabitancy,’is used synonymously with ‘legal settlement,’ for the purpose of receiving support under the laws of the commonwealth for the relief of the poor, we are of opinion, that such residence, for any length of time, will *421not give such persons or their children a legal inhabitancy in such town.
4. We are also of opinion, that persons residing on such territory do not thereby acquire any elective franchise, as inhabitants of the towns in which such territory is situated.
LEMUEL SHAW, SAMUEL PUTNAM, S. S. WILDE, CHARLES A. DEWEY.
Boston, March 10, 1841.” | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502563/ | The election in this town being controverted, on the ground, that, at the meeting when it took place, the inhabitants voted to dispense with the check list, the committee on elections reported thereon as follows:—
“ The committee on elections, to whom was referred the petition of David Wilson and others, of Princeton, against the seat of Ebenezer Parker, the sitting member from that town, report, that having notified the parties, the only evidence offered in support of the petition was the record of the town clerk, which was as follows
‘ FOR REPRESENTATIVE TO THE GENERAL COURT.
The votes having been sorted and counted on the first ballot, it appeared that no person had a majority of all the votes given in. Said inhabitants then voted to dispense with the check list, and gave in their votes a second time, and the same being sorted and counted, were as follows : — For Eben-ezer Parker, seventy-seven ; Charles A. Myrick, forty-seven; John Myrick, twenty-four; Israel Everett, one ; Enoch Brooks, one; John Brooks, one; and Mr. Ebenezer Parker was declared to be duly elected.’
The above town-record was admitted to be true.
*423The committee recommend the adoption of the following order:—
Ordered, That the seat of Ebenezer Parker, returned as a member of this house, from Princeton, be and hereby is declared vacant.”
This report was agreed to.1
The committee on elections also reported certain orders for the purpose of causing a prosecution to be instituted, for the illegal conduct of the town and the selectmen, in dispensing with the check list, which orders were indefinitely postponed.2 A motion was also made for a precept for a new election, which was refused by the house.3 The member was allowed his pay.4
64 J. H. 76, 89.
Same, 76, 92, 97.
Same, 89, 97.
Same, 90, 96. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502565/ | The question in this case arose upon an inquiry instituted by the house into the correctness of the return from Tewks-bury.2 It was referred to the committee on elections, and they reported thereon as follows :—
“ The committee on elections, to whom was referred the *428orders directing them to inquire into the correctness of the return from Tewksbury, ask leave to report, that, it having been stated to them that the record of the November town-meeting stood as follows:-whole number of votes, 176; necessary for a choice, 84; the sitting member had 85. They directed a summons to the town clerk to appear before them with the record. On inspecting the record, it appeared, that the figures, as above set forth, were there recorded. But the committee, on adding together the votes given for the various candidates, found that the aggregate amount was 166, and not 176, and the clerk stated that the 7 in place of the 6 was a clerical error of his own. The committee therefore request that they may be discharged from the further consideration of the order,”
The report was agreed to.1
Same, 152.
64 J. H. 199. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502566/ | The election of Moses Merrill, returned a member from the town of Methuen, was controverted by S. L. Fogg and others, on the ground, that seven illegal votes were given therein for the sitting member, without which he would not have had a majority.
It appeared, by the town records, that at the meeting on the 8th of November, 1841, the whole number of votes given in for representative was 445; necessary for a choice, 223; Samuel II. Harris had 222; Moses Merrill, 221; scattering, 2; and there was no choice. The meeting was then dissolved, and at a subsequent meeting called and held on the fourth Monday, the whole number of votes given in for representative was 460; necessary to a choice, 231; Moses Merrill had 232: Samuel II. Harris had 227; scattering,!; and Moses Merrill was declared to be elected.
*429The petitioners objected to the votes of Charles Barker, Joseph (J. Emerson, Branch Gutterson, George W. Chadwick, Daniel P, Eaton, William White and Dudley Smith, all whose names were borne on the list of voters, and were found checked on the list which was used at the meeting.
The names of Emerson and Gutterson were inserted on the list as Joseph Emerson, and B. G. Gutterson. They were all proved by other evidence to have voted at the election, and for Moses Merrill,
Charles Barker’s vote was objected to, on the ground, that he had not been an inhabitant of Methuen, at the time of the election, for six calendar months previous thereto. It appeared in evidence, that in the month of April, 1841, Barker was at work in a paper-mill in Methuen, and was taxed there as of the 1st of May following; that in June of the same year, he applied to another person in Methuen for employment in putting up machinery, saying that he wished to change his business ; that he made an engagement accordingly, by which, after visiting his friends in Fairhaven, for a few weeks, he agreed to return on being informed by letter, that bis employer was ready for him: and that he was written to for the purpose, and came to Methuen, about a fortnight before the election. He was not employed, however, according to the agreement, on his return ; but claimed damage for the breach of contract, and was to be employed afterwards, if the other party should want him.
The vote of George W. Chadwick was objected to on the same ground. From his own testimony it appeared, that he was twenty-eight years of age ; that he then lived at Methuen, and had lived there twenty-seven years ; that he owned a tenement ; and had household furniture then there; that on the 8th of April, previous to the election, he went to Nashua, taking none of his furniture, and only what he wore, with him; that he returned on the 8th of May to Methuen, and staid at home a week; that he was at home again two or three days in June, and on the last of July or first of August, returned home permanently; that while at Nashua, he was at his *430wife’s father’s, where he went at the request of his wife’s mother, for a visit, but made a few shoes there in the house ; that his intention, when he went, was to make a short visit, certainly to return in May; and that he paid no taxes and attended no town-meetings in Nashua.
The vote of Joseph Emerson was also objected to, on the ground of a want of residence. He testified, that in the fall of 1840, he was at work at Stephens’s piano-forte factory in Methuen; that, business growing bad, he accepted an offer to go to Manchester and make two dozen bureaus; that he went there at first principally to carry another person, and when there, was persuaded to take the job above-mentioned ; that he agreed to return when Stephens could give him employment, and had no intention of leaving Methuen permanently; that he received a letter from Stephens in February, 1841, informing him that he had employment for him, and inviting him to return, which he did in the month of March following. It appeared, also, that Emerson was twenty-three years old, and had paid his taxes every year in Methuen; that he had no family, but had a mother residing in Methuen ; that when he went to Manchester, he carried his tools and clothes, but left his old clothes with his mother at Methuen; and that he voted in Manchester in March, 1841. When he left Methuen to go to Manchester, he told Stephens that he would come back at any time, when he would give him good encouragement. It was also in evidence, that Emerson was a member of a Methodist church in Methuen, and that when he went to Manchester, he received a letter of recommendation, which, it was testified to by one witness, an officer of the church in Methuen, was only asked for when the applicant intended to remain away permanently. Another witness, who was a member of the Methodist church in Boston, testified, that when a man belonging to a Methodist church leaves, intending to be gone some time, although finally to return, it is usual to take a certificate with him. When such a letter is taken, if the party presents it at any other church, he must bring back one from that other church, before he can be readmitted to fellowship.
*431The objection alleged against Daniel P. Eaton’s vote was, that he was an alien by birth ; in relation to which it appeared that his father, who was a citizen of the United States, as early as 1802, and previous thereto, went to Canada about the year 1818, where lie died in 1836. His son, the voter, was bom in Montreal, in 1818, about seven months after his parents went there. He had been married and been taxed there.
The vote of Branch Gutterson was also objected to, on the ground, that he was an alien born. The father of this voter was bom in Methuen, and was then sixty-two years old : he resided in Methuen until he was seventeen years old, when he went to Haverhill to learn a trade, where he remained until he was twenty-one; he then worked in the vicinity until 1802, when he went to Nova Scotia. He lived in Nova Scotia twenty-three years, during which time he worked alternately, for seven or eight years, in Nova Scotia and the United States, and returned finally to Methuen in 1825, where he had since resided. Branch Gutterson, the voter, was born in the province of Nova Scotia, came with his father to Methuen in 1825, where he had since resided, and in June, 1841, was about twenty-one years of age.
William White, whose vote was called in question, on the ground of a want of residence, testified, that his family lived in Methuen, where he had lived almost all his life ; that about three years previous, being advised to go to the sea-board for the health of himself and wife, he went accordingly to Salem ; leaving some of his goods stored at Methuen, where he had previously kept house; that his health improved, and his wife grew worse, by the removal; that as soon as his wife could be moved, which was in January, 1840, he carried her back to Methuen, and boarded her there; that he went back to Salem, and boarded and worked there as a shoemaker, visiting his wife in Methuen, once in four or five weeks, until the 17th of May, 1841, when he left Salem and travelled with a circus company through the states and the British provinces, until the 9th of October preceding the election; that he had paid *432three tax bills in Salem, and had voted there at two annual elections; and that if he had been at Salem in November, 1841, he should have voted there.
The vote of Dudley Smith being objected to on the same ground, he testified, that he had no family, and had lived in Methuen till the spring previous ; that having no real estate in Methuen, and for two years having been out of business, he had been boarding at the tavern there; that having an offer of his board to go to Hampton Beach to tend bar. he went there accordingly, on the 6th or 7th of July, 1841, leaving his extra and thick clothing at Methuen, and declaring that he should return in a fortnight; that he staid longer, and might have remained still longer, but that tending bar at Hampton Beach, in the summer, was hard work.
The sitting member offered, and was allowed to give evidence, to prove, that four persons, namely, Luther Parker, Albert Fales, Nathaniel Mower, and Stephen W. Wise, who voted at the election against the respondent, were illegal voters.
Luther Parker, whose vote was questioned on the ground of a want of residence, had, for the twenty months previous to the hearing, worked in a saw mill at Methuen, being absent during that time about two months while the water was too low for working the mill. He had been taxed twice in Me-thuen. Twice in a year he went to Nashua to visit his wife and children, who kept house there.
Albert Fales, who was alleged not to have paid a tax within the time required by the constitution, testified, that he first came to Methuen eleven years before, and remained there until 1837, when he went to Lowell, and remained there and at New London in New Hampshire, away from Methuen, until the last or middle, of December. 1840. lie further testified, that he paid no tax in 1841, but that he paid a tax in Lowell iu 1840. To contradict this last statement, the respondent introduced a certificate of the treasurer and collector of Lowell, sworn to by him, that no man, by the name of Fales, appeared to have been taxed to the city of Lowell for the year 1840.
*433In regard to Nathaniel Mower, whose vote was objected to on the ground of a want of residence in Methuen, it appeared, from his own evidence, that he had lived at Methuen since 1835, working at hatting; that he had been absent at times at Lowell, where he had a wife and children ; that his wife kept house at Lowell, to the expenses of which he contributed about 50 or 60 dollars a year; that he visited his family once in four, five, or six weeks, remaining with them two or three days at a time; and that he had always paid taxes and voted in Methuen.
It appeared that Stephen H. Wise, whose vote was questioned on the ground of a want of residence, came from Hebron, N. H., to Methuen, in 1833, where he remained nearly six years, with occasional absences of a month or six weeks at a time. In November, 1838, he went to Danvers, and worked there until the spring of 1840. He was then absent at various places, in this state and New Hampshire, until the 19th of April, 1841, when he returned to Methuen, taking with him his property from Danvers. He remained in Methuen, and voted at the election in November, 1841.
The committee on elections, before giving their opinion to the house, as to the qualifications of the several voters who were objected to on the one side and on the other, presented their views, preliminary thereto, as follows : — >
“ Joseph C. Emerson voted in Methuen, when there is no such name on the list, and Joseph Emerson’s name is checked, and there are other similar cases. On this, the question arose before the committee, whether a person, otherwise a legal voter, having all the requisites prescribed in the constitution, became an illegal voter, by not being able to find his name on the check list.
And on this point the committee believe, that the whole law regulating the forms and proceedings at elections is merely directory, and can not deprive a voter of rights which he holds under the constitution ; that if, for instance, Joseph C. Emerson was a legal voter in Methuen, was twenty-one years old, had lived in Massachussetts one year, and in Me-*434timen six calendar months, and had paid a tax legally assessed within two years, the selectmen had a right to receive his vote, though his name could not be found on the check list.
The committee were obliged to establish in the committee-room certain principles of the admissibility of testimony, which they think in accordance with the law of the land. But as all their doings are subject to the supervision of the house, they feel it a duty to suggest upon what principles they acted.
1. They allowed either party to prove how a person voted, and that he did vote, either by the oath of the voter himself, or of some other person who could verify the fact.
2. They refused to hear testimony of the declarations of a voter that he voted, or for whom he voted, unless where the voter himself had been called and declined answering for fear of criminating himself.
3. They allowed proof from either party, by the voter or aliunde, as to any fact showing residence or removal, not requiring the voter to be first examined on this point.
4. They freely admitted testimony of the voter’s statements respecting his intentions, motives, &e., bearing upon his removals from place to place, because his intent is the gist of the matter, and can be gathered as much from his sayings at the time, as his doings.”
The committee, then, applying to the several cases, the principles relating to the law of domicil, established by the supreme judicial court in the cases of Sears, v. Boston, 1. Met. 250, Thorndike v. Boston, 1. Met. 245, Lincoln v. Hapgood, 11 Mass. 350, and Jennison, v. Hapgood, 10 Pick. 77, reported, that in their opinion, George W. Chadwick, Joseph Emerson, and Dudley Smith, objected to by the petitioners, and Luther Parker, Nathaniel Mower, and Stephen II. Wise, objected to by the sitting member, were duly qualified as to residence, and their votes properly received; and that Charles Barker and William White, objected to by the petitioners, were not duly qualified as to residence, and their votes ought to have been rejected.
They also reported, that Daniel P. Eaton and Branch Gut-terson, objected to by the petitioners as aliens, were to be con*435sidered as citizens of the United States, although bom in a foreign country, within the express provisions of the act of congress of the 14th of April, 1802, relative to the children of persons who then were or had been citizens of the United States.
The committee further reported, that they were satisfied by the evidence, that Albert Fales, objected to by the sitting member, had not paid a tax legally assessed upon him within two years, and that Ms vote ought therefore to have been rejected.
The committee having rejected two votes in favor of the sitting member, and one vote against him, recommended that the petitioners have leave to withdraw their petition.
The report, concluding as above, was read and rejected by the house; who, thus, in effect, confirmed the election, without adopting the reasoning or conclusions of the committee.1
64 J. H. 128, 172, 204, 255. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502644/ | Journal Entries: (i) Sept. 15, 1817: notice of trial ordered published; (2) Nov. 24, 1818: evidence heard, property condemned, sale ordered, notice of sale ordered.
Papers in File: See Transactions 1814-1824, I, 345, case A-71.
File No..... | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502969/ | OPINION
Opinion delivered by
YAZZIE, Chief Justice.
The defendant, Cynthia Hunter, appeals her convictions of the offenses of delivery of liquor, contributing to the delinquency of a minor and endangering the welfare of a minor (two counts). Hunter contends that the Shiprock District Court should have granted her motion for acquittal because the prosecution failed to prove each element of the four criminal charges.
I
The charges arose out of an incident where a citizen saw drunken activity and also saw individuals put two cases of beer in a vehicle at Waterflow, New Mexico. Upon the citizen’s report to a Navajo police officer, the officer followed the reported vehicle and saw it speeding and weaving in and out of traffic. The officer stopped the vehicle within the territorial jurisdiction of the Navajo Nation. Upon inspecting the vehicle, the officer saw packages of liquor and seized forty-seven cans of beer. Upon a proper inquiry about the identity of the passengers, the officer discovered that two were male minors who were 15 and 16 years of age. They were visibly intoxicated.
The district court found culpability in Hunter’s role in obtaining the liquor, giving it to the minors, importing it into the Navajo Nation and permitting the minors to participate in the criminal offenses of possession, delivery and consumption of liquor.
Hunter contends that at trial, she made a motion for acquittal on the ground that the Navajo Nation failed to prove, beyond a reasonable doubt, that she was a “person” within the meaning of the criminal law.
*195The issue is who has the burden of proof to show that a defendant is or is not an “Indian” for purposes of jurisdiction. We will also address the method of proof to be used and the scope of the term “Indian” for purposes of criminal jurisdiction.
II
The delivery of liquor statute, 17 N.T.C. § 411(a), makes it an offense for “a person” to deliver liquor, including beer. The contributing to the delinquency of a minor statute, 17 N.T.C. § 313 (a), prohibits “a person” from contributing to the delinquency of a minor by helping a child commit an offense. The endangering the welfare of a minor law makes it a crime for “a person” to fail to maintain reasonable care and treatment of a minor. The transcript of proceedings confirms the trial court’s findings of guilty beyond a reasonable doubt under those statutes, but the question is who must prove an individual is a “person” (and an Indian) under those statutes.
The definition of “person” in the Criminal Code “includes any natural Indian individual....” 17 N.T.C. § 208(17). Navajo law does not require affirmative proof of the terms “person” or “Indian” as an element of any crime. The statute which addresses criminal culpability, 17 N.T.C. § 211, provides only as follows: “A person shall not be guilty of an offense unless he acted intentionally, knowingly, recklessly, or negligently as the law may require with respect to each material element of the offense.” (emphasis added). That section does not require the prosecution to prove personal status as a material element, and the exclusion of it as a condition of culpability evidences the Navajo Nation Council’s intent that such is not required. This section is read with 17 N.T.C. § 206, which requires that each element of the offense must be proved beyond a reasonable doubt. That means each and every material element of the statute which constitutes the offense. In other words, the prosecution need only prove the conduct which is prohibited by the statute (along with the required mental state), as material elements.
This analysis is reinforced further by the territoriality statute, 17 N.T.C. § 203. It provides that the Navajo Nation courts have jurisdiction over “any person” who commits an offense “if the conduct constituting any element of the offense” occurs within the territorial jurisdiction of the Navajo Nation, (emphasis added).
Hunter cites Rule 29(g) of the Navajo Rules of Criminal Procedure (1990), which permits the defendant to challenge the jurisdiction of the court at any time. The Criminal Procedure Rules must be read to implement the purposes of the Criminal Code. They are a gloss upon its provisions to carry out the intent that criminal law “shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” N.R.Cr.P. 2(b). The rules give a defendant an opportunity to challenge the court’s jurisdiction at any time, but place the burden of proof upon the defendant to show a lack of jurisdiction. The burden was on Hunter to show, by a preponderance of the *196evidence, that she was not an “Indian” for purposes of 17 N.T.C. § 208(17).1
A
It is unreasonable to require the Navajo Nation to prove that an individual is an “Indian” because that information is in the hands of the defendant or more readily obtained by the defendant. It is difficult or impossible for the prosecution to ascertain someone’s ancestry or to survey the defendant’s community to find its perceptions of his or her personal status. We construe the definition of “person” as being an “Indian” to mean the following:
Recognizing the possible diversity of definitions of ‘Indian-hood,’ we may nevertheless find some practical value in a definition of ‘Indian’ as a person meeting two qualifications: (a) that some of his ancestors lived in America before its discovery by the white race, and (b) that the individual is considered an ‘Indian’ by the community in which he lives.
Felix S. Cohen, Handbook of Federal Indian Law 2 (University of New Mexico Ed., n.d.).2 We add to the definition that if a non-Navajo individual assumes tribal relations with Navajos or the Navajo Nation in our territorial jurisdiction, as discussed below, that person is deemed to be an Indian for purposes of jurisdiction.
B
The prosecution may not be able to question a defendant about ancestry due to the privilege against self-incrimination. We do not decide that issue here. The privilege is not jeopardized by the burden we place upon defendants in this case. Rule 26 of the Navajo Rules of Evidence (1978) provides several methods of proof of “Indian-hood” where the availability of the declarant is immaterial. The rule addresses the situation where the declarant cannot be the defendant, if he or she invokes the privilege against self-incrimination. The methods of proof include records of regularly conducted activity (No. 6), absence of entry in records of regularly conducted activity (No. 7), public records and reports (No. 8), absence of public record or entry (No. 10),3 records of religious organizations (No. 11), marriage, baptismal and similar certificates (No. 12), family records (No. 13), and reputation on personal or family history (No. 19).
The last exception, reputation on personal or family history, is also known as pedigree evidence. Where a question of whether a person is an “Indian” arises, testimony about a person’s ancestry can be used. In Hudgins v. Wrights, 1 *197Henning & Munford’s Rpts. 133 (Va. 1806), the court permitted individuals to testify about their percentage of Indian blood, color and features and the fact they were descendants of a free Indian woman, to obtain freedom from slavery.4 In State v. Rackich, 119 P. 843 (Wash. 1911), involving the crime of illegal sale of liquor to an Indian, the prosecution was permitted to put on testimony that the person to whom the liquor was sold was one-half Portuguese and one-half Indian. In United States v. Mid-Continent Petroleum Corp., 61 F.2d 37 (10th Cir. 1933), the issue was whether parties to an intestate probate of an allotment could testify about their parentage to establish they were “Indian” heirs. The court ruled that “[ejvidence of declarations, tradition, and reputation is admissible to provide facts as to genealogy or pedigree.” Id. at 45. In Ware v. Beach, 322 P.2d 635 (Okla. 1957), where a husband elected against his wife’s will and his ability to inherit was challenged on the ground he was not an “Indian,” the court said, “The question here involved is, strictly speaking, race or race-ancesty rather than pedigree. The rule as to proof of race ancestry is not so strict as the rule as to proof of pedigree. Evidence as to the general reputation in the community concerning the race of a member of the community is competent.” Id. at 639.5 Finally, in Matter of R.M.B., 689 P.2d 281 (Mont. 1984), an Indian Child Welfare Act case, the Montana Supreme Court upheld use of statements by out-of-court declarants under the Montana Rules of Evidence to determine if a child was an “Indian child” within the meaning of that Act.
We approve the use of proof of ancestry and community reputation as an “Indian” under the Criminal Code. We hold that the defendant has the burden, by a preponderance of the evidence, to prove he or she is not an “Indian” for purposes of challenging the jurisdiction of the court.
Ill
One of the duties of this Court is to guard the sovereignty of the Navajo Nation. There is a false assumption that Indian nations absolutely lack criminal jurisdiction over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), which purportedly stripped Indian nations of their criminal jurisdiction over non-Indians, provides exceptions to the rule of non-jurisdiction. The United States Supreme Court elaborated on them in Duro v. Reina, 495 U.S. 676 (1990). Under both Oliphant and Duro, using the Court’s citations to United States v. Rogers, 4 How. 567 (1846), and Nofire v. United States, 164 U.S. 657 (1897), and the precedents used to decide those cases, an individual who “assumes tribal rela*198tions” is fully subject to the laws of the Indian nation with which that person assumes such relations.
While the Navajo Nation specifically rejects adoption of non-Navajos under 1 N.T.C. § 502 as an element of assuming tribal relations, we interpret criminal statutes in light of Navajo common law. Navajo Nation v. Platero, 6 Nav. R. 422 (1991). There are various ways an individual may “assume tribal relations” as a matter of Navajo common law: by entry within the Navajo Nation with the consent of the Nation pursuant to Article II of the Treaty of 1868;6 by marriage or cohabitation with a Navajo; or other consensual acts of affiliation with the Navajo Nation.7
We hold, that where a criminal defendant has assumed tribal relations with the Navajo Nation, such defendant will be considered an “Indian” and thus a “person” for purposes of 17 N.T.C. § 208(17). In matters of public safety and responsibility for personal conduct, a defendant’s personal relations within the Navajo Nation is material.
While the Navajo Nation is now plagued with the imported evils of family violence, child abuse, gang activity and other social ills, the Government of the United States has done little to help cure the social diseases it helped inflict upon Navajos. Navajos were forced into a cycle of dependence upon the United States. The Navajo Nation Council must fully implement the provisions of our great Treaty with the United States of America, and the Attorney General of the United States should support our stand to assert criminal jurisdiction over non-Indians. The Navajo Nation cannot allow victims of crime to go unprotected from the law, because the Navajo people live under the rule of law; not the rule of lawlessness, as is seemingly declared by the United States Supreme Court in its myopic Indian jurisdiction decisions.
The Shiprock District Court judgments are AFFIRMED.
. We note that the judgments in this case have what purports to be the defendant’s Navajo census number. We choose to put aside the prosecution’s argument that the district court took judicial notice of that fact, but note that Navajo Nation law enforcement officers have the authority to obtain a census number from a defendant for purposes of reasonable identification.
. This is a republication of Cohen’s original work and not the 1982 revised edition.
. That is, absence of entries in public records which state the person as an “Indian.”
. One of Thomas Jefferson’s legal specialities as a lawyer was freeing Indians from slavery, and although he was President of the United States when this decision was rendered, he personally participated in it by providing authoritative copies of applicable statutes. Dumbauld, A Manuscript from Monticello: Jefferson’s Library in Legal History, 38 American Bar Assn. Journal 389 (1952).
. The Oklahoma court was not as precise as it should be. “Indian-hood,” in Cohen’s words, is not a racial but a political classification. However, the principles of relaxed proof of community reputation also apply to the political status of being an Indian.
. Where the “reservation” of lands in the treaty is defined and the United States agreed that no person could ever “pass over, settle upon, or reside in” the Navajo Nation without its permission.
. Given that efforts are underway to revise the Navajo Nation Criminal Code, the drafters should maximize use of treaty-entry limitations, border control, and specific consent to jurisdiction by entry onto the Navajo Nation. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502569/ | “ In the opinion of the committee, no further legislation is *437necessary, to prevent undergraduates of colleges from exercising the privilege of voting in the towns where those institutions are situated, The laws now in force are sufficient, if duly executed. No person is entitled to vote who has not resided within the state one year, and in the town where he claims such right, six calendar months next preceding the election; and he must have attained the age of twenty-one years, and have paid by himself, his parent, master or guardian, some state or comity tax, which shall, within two years next preceding such election, have been assessed on him in some town or district within the commonwealth. The selectmen of the town are bound by law to make lists of all qualified voters, and not to receive the vote of* any person whose name is not borne on such list. If any one knowing himself not to be legally qualified, shall wilfully give in a vote at an election, he shall forfeit a sum not exceeding one hundred dollars. If any one shall wilfully aid or abet any person not legally qualified, in voting or attempting to vote at any election, he shall forfeit a sum not exceeding fifty dollars; and if any selectman or other town officer shall wilfully neglect or refuse to perform any of the duties required of them respecting elections, they shall severally forfeit a sum not exceeding two hundred dollars. If an undergraduate of a college is a resident or inhabitant, within the meaning of the constitution, is of the required age, and has paid the tax assessed upon him as above, he is legally entitled to vote; and the committee are not aware of any power in the legislature to deprive him of this right, merely by reason of his being such undergraduate. He has the same right to employ himself in obtaining a literary education, as in learning or exercising a trade, an art, a profession or agricultural pursuits. But the requirements of the constitution and laws are not satisfied, by merely abiding or remaining within the commonwealth and town where the individual claims to vote. He must go there with the intent, bona fide, to make it his home — to obtain a domicil. If his home is in another state, or in another town in this state, and he is a sojourner for temporary purposes, merely, intending when those *438purposes are accomplished, sooner or later, to leave the state or town and return home, he is not liable to the duties nor entitled to the privileges of a citizen of the town he sojourns in. This is a question of fact in each case, and the party, who avers that he has abandoned his domicil of origin and taken up a new one, is bound to prove it. In determining this question, his intention is of the utmost importance, and his acts and declarations are evidence for or against him. By our law a man cannot be an inhabitant of two towns at the same time; but he may be legally an inhabitant of one town, while residing for temporary purposes in another. If otherwise legally qualified to vote, he will have the right to vote in the former and not in the latter town. The right to vote, eligibility to office, and liability to taxes, in one town, are necessarily exclusive of the same rights and liabilities in all other towns. These rules, applicable to citizens of Massachusetts, apply with at least equal force to citizens of other states, who come here, not with the intention of remaining, but with that of returning to their native state, when the objects of their visit here are accomplished.
The committee, therefore, in conclusion, are of opinion, that those undergraduates who resort to a town where a college or other literary institution is situated, merely for the purpose of pursuing their studies, and with the intention of returning to their homes whenever their connection with the college shall be dissolved or severed, are not legally qualified voters in such town, and that their votes ought not to be received by the selectmen of the town.
The committee ask to be discharged from the further consideration of this subject.”
This report having been received and read, it was ordered, that two thousand copies thereof be printed, and that the secretary of the commonwealth be directed to transmit a copy to each of the towns and cities in the commonwealth.1 The report was afterwards agreed to.2
64 J. H. 110.
Same, 132. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502570/ | 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 *440any 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.3 Before declaring the vote, it was moved and seconded, that the vote of Mr. Nash be disallowed.4 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, *441and 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,3 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 thereon4 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 *442out 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*443duced 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 oí 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 cheeked, 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 *444such election, shall first be ascertained, by counting the whole number of separate ballots given in; and no person shall be deemed and declared to be elected, who shall not have received a majority of the whole number of ballots; and in all returns of elections, the whole number of ballots given in shall be distinctly stated ; but blank pieces of paper shall not be counted as ballots.’
Again, c. 5, § 7, prescribes ‘that the election of representatives shall be recorded in the town records, together with the whole number of votes given in, and the names of all the persons for whom they were given.’
It will be observed that nothing is said as to ineligible candidates, but a vote given for any person is to be recorded.
The practice in congress has been to count all ballots, and even blanks, in determining an election ; but a practice has occasionally obtained in this house, in convention, of treating ballots for unconstitutional candidates as blanks. Your committee, however, are not aware that any member was ever returned to this house, or established in his seat here, by the rejection of ballots for ineligible candidates, which would, if counted, have changed the result.
In anticipation of the possibility of such a result, and in consequence of an order having been submitted to the committee on this subject by the house, it becomes important that this question should be brought distinctly before the house for their judgment; inasmuch, as although there are difficulties in the minds of the committee in this case, in consequence of the uncertainty as to the Williams vote, and owing to the vote of the town on the 14th, not to send, which vote might have been rescinded then or on the 28th; yet, after all, another and a very grave question is, will the house allow a person to take or hold a seat as a member, who has not a majority of the ballots cast by legal voters 1
May not every legal voter, relying on the thirteenth section of the fourth chapter, say, that s vote for whom I may, if I vote for any person, my ballot must be counted to determine the whole number of ballots.’ And again, where there is *445voting going on, at the same time, in three different boxes, may not a voter, by mistake, deposit the wrong ballot in the representative box ? And then, though he is punished for his neglect, by failing to have his vote count affirmatively for his favorite candidate, will the house go further, and say that Ms ballot shall not be counted to ascertain the whole number of ballots? We think not.
The committee desire to present another view of this case, to which we have already alluded in part, which somewhat divests it of a'ny embarrassment upon the subject of this count.
It cannot be doubted, that the selectmen are the competent authority to act and pass upon the votes during the continuance of the town-meeting. The selectmen, exercising their authority, declared to the town that there was no choice. No objection was made at the time to this declaration, and it ⅛ not pretended that there was any fraud, connivance, or intentional misconduct, in the selectmen, in this declaration.
The town, if they had seen proper, might have proceeded to another choice at that time ; but on the contrary, a motion was immediately made, and deliberately carried, not to send a representative.
It will be observed, that all this took place at the meeting on the second Monday of November; and, by the statute, the town, or any ten voters of the town, might have asked for a meeting on the fourth Monday of the month, and it was not done.
The vote, therefore, ‘ not to send,’ remains; and that deliberate act of the town, being an act within their power, and which they might have reversed, if they had chosen, on the fourth Monday, ought not to be reversed by the legislature, without full and conclusive and satisfactory evidence, that the people had already chosen some one to represent them; and that this result had been announced in the meeting ; and therefore, that they had no right to vote not to send. The committee, therefore, recommend the adoption of the following order: — ■
*446Ordered, That Thomas Nash, Jr., the petitioner,- have leave to withdraw his petition.”
A counter report was also presented at the same time, signed by three members of the committee, (Messrs. Thomas, Russell, and Williams,) as follows :—
“ The committee on elections have divided on the case of Thomas Nash, Jr., of Whately, and it becomes necessary for the undersigned to make their report:—
They do not present it as the minority report, but, in fact, as the majority report, in so far as the conclusion is concerned, namely, that Mr. Nash is entitled to a seat in this house. This conclusion they regard as the legitimate deduction from the votes taken in the committee, on the several points raised in the inquiry. No other conclusion can be fairly drawn from those votes, which are to the following effect, and establish, by a majority of the committee, these facts :—
1st. That all the votes given to Thomas Nash, Jr,, the claiming member, namely, 118, are legal votes.
2nd. That Noah Dickinson and Asa Belden would have voted for Mr. Nash, if Porter Wells and Calvin "Wells had been allowed to vote for Justus White, and that these two on both sides are balanced, and not to be counted either way.
3rd. That the votes of John Brown and "Willard Belden, which were duly offered in town-meeting for Thomas Nash, Jr., and rejected by the selectmen, were unlawfully rejected, and ought to have been received and counted for Mr, Nash ; the said Brown and Belden being qualified voters, and having taken all the preliminary steps to entitle them to vote.
4th. That Justus White, the opposing candidate to Mr. Nash, has shown no claim whatever to a seat in this house.
5th. That the vote for Horace W. Taft, of Sunderland, for register of deeds, ought not be counted. On these points the committee are agreed. This would make the whole number of votes 236 : of which Thomas Nash had 118; Justus White had 117; (Charles Williams of Deerfield, for register of deeds,’ 1. On the exclusion of the vote for Charles Williams, *447of Deerfield, for register of deeds, the vote in the committee was 3 to 3, the chairman not being present.
If the Charles Williams vote is excluded, which it ought to be, in the opinion of the undersigned, as well as the vote for Horace W. Taft, then Mr. Nash was elected.
But even if that vote is counted against Mr. Nash, still, as the undersigned view it, Mr. Nash is elected by excluding the vote of Abner Field, who voted against Mr. Nash, and who was not a legal voter. It was proved that Field voted for Justus White, and it was contended, on the part of Mr. Nash, that Field was not a legal voter. On this question the vote in the committee stood 3 to 3, the chairman being absent. But the chairman comes to the same conclusion, as we understand it, and which is in strict conformity to bis own decision in the case of Methuen, reported at the last session of the legislature, that Field was not a legal voter, and hence his vote ought to be excluded. This would leave (even counting the Williams vote for register of deeds,) the following result:
Whole number of votes as counted by the selectmen, 237
Deduct the Horace W. Taft vote, 1
“ Abner Field’s illegal vote, 1
— 2
Would leave, ....... 235
Necessary to a choice, ...... 118
Thomas Nash, Jr,, has ..... 118
Justus White 117, less 1 by the illegal vote of
Abner Field, ...... 116
Charles Williams, for register of deeds, - - 1
Thus, by rejecting the Horace W. Taft vote, and the vote of Abner Field, in which a majority of the committee agree, it is in fact decided that Mr. Nash has a majority of all the legal votes given for representative, and such ought to be the conclusion of the report.
The only ground taken to obviate this conclusion, as we understand it, is, that after the votes were counted, and no *448choice declared by the selectmen, the town voted not to send a representative to the general court the present year.
An answer to this is, that such a vote, taken alter a ballot, cannot invalidate a choice, if any person had received, previous to such vote, a majority of the legal ballots for representative.
Any other conclusion would put it in the power of a minority, who should happen to remain in town-meeting, after the result of a ballot that showed a majority for a candidate, to set it aside by declaring no choice, and voting not to send.
An election, made after a vote not to send, is void, but a vote not to send cannot invalidate an election already made by a majority of the legal votes given for a representative.
This point was settled as early as 1787, in the case of the town of Paxton, (ante, 20,) and has never since been questioned in any decision. In that case the selectmen refused to give Hezekiah Ward a certificate of election, alleging that a meeting was held in that town for choice of representative, which was very thinly attended, at which it was voted to send a representative, and Mr. Ward was elected; that the said meeting was adjourned, and at the adjournment thereof, when a much larger number of the inhabitants was present, it was voted to reconsider the vote passed at the previous meeting; that Mr. Ward was present at said adjourned meeting, and was also informed of the reconsideration by one of the selectmen, but nevertheless claimed his seat.
Upon this state of facts, the petitioners had leave to withdraw, and Mr. Ward held his seat.
If, therefore, Mr. Nash had a majority of the votes cast for representative in the town of Whately, on the first ballot, no subsequent act of the town could deprive him of his seat.
The same point is settled in Mr. Fuller’s case, in the town of Holland, (ante, 368). The town voted to send a representative, and a ballot was had. The selectmen declared no choice. Several other ballots were had without a choice ; and then the town voted to reconsider the vote to send, and the meeting was dissolved; Mr. Fuller claimed his seat on the ground that he was chosen on the first ballot. The committee on elections *449were satisfied that he did have such majority, and reported accordingly.
The chairman of the present committee on elections was also chairman of the committee in Mr. Fuller’s case, and though he dissented from the report in his favor on another ground, viz.: that Mr. Fuller had obtained votes by the promise of a treat given to the voters, in the nature of a bribe, yet he “ concurred with the majority in reference to all the facts stated in their report,” and did not rely on the votes of reconsideration and not to send, as affecting the balloting which had previously been had.
On these grounds, the undersigned think they have a right to put it to the house, that the only fair deduction, from the votes of a majority of the committee, on the several points raised in the case of Mr. Nash, is, that he was duly chosen a member of this house, and is entitled to his seat. But the undersigned go further, and maintain that the votes for register of deeds should not be counted, and that upon the face of the record, as well as all the facts in the case, Mr. Nash was duly chosen a member of this house.
The question as first presented upon the record was solely whether two votes, given for ineligible persons, should be counted. But in the investigation before the committee, the petitioners alleged that four votes had been illegally received for Mr. Nash, and two votes for Mr. White rejected. On the part of Mr. Nash, it was contended that four legal votes had been rejected that were offered for him, and that one illegal vote had been received for Mr. White. The proof satisfied the committee, that all the votes for Mr. Nash were legal, and that two more votes for Mr. Nash than for Mr. White were rejected that ought to have been received.
The only fact in the case on which the committee differ is, whether Abner Field, who voted for White, was a resident in Whately.
The following is a copy of the entire record of the meeting for choice of representative and for register of deeds, on the *45014th day of November in the town of Whately. The whole record should be taken together, that the intent of the voters may be fairly understood.
COPY OF RECORD.
‘ The following is a copy of the votes cast in the town of Whately, for representative to the general court, Nov. 14th, 1842.
For representatives to general court, — whole number of votes, two hundred and thirty seven.
For Thomas Nash, Jr., one hundred and eighteen.
“ Justus White, one hundred and seventeen.
“ Horace W. Taft, one.
“ Charles Williams, one, — declared,—no choice.
Voted not to send a representative to the general court the present year.’
The following is a copy of the warrant and the doings of a meeting held in the town of Whately, Nov. 14, 1812, for the choice of a register of deeds for the county of Franklin.
¿ Franklin, ss. To Samuel B. White, constable of the town of Whately, greeting: In the name of the commonwealth of Massachusetts, you are required to notify and warn the inhabitants of the town of Whately, qualified to vote in elections, to meet at the meeting-house near the centre of said town, on Monday, the fourteenth day of November, iiist,, at one o’clock, P. M., to act on the following articles, viz :
Art. 1st. To choose a moderator.
Art. 2d. To bring in their votes for a register of deeds for the county of Franklin.
And you are directed to serve this warrant, by posting up attested copies thereof, at each of the public meeting-houses in said town, eight days at least before the time of holding said meeting.
Hereof fail not, and make due return of this warrant withyour doings thereon to the town clerk, at the time and place of meeting aforesaid.
Given under our hands, this third day of November, in *451the year of our Lord, one thousand eight hundred and forty-two,
PLYNA GRAVES,
SETH BÁRDWELL,
RODOLPHUSSANDERSON,
Selectmen of Whately..
Franklin, ss. Whately, Nov. 5lh, 1842.
I have served this warrant by this day posting up attested copies of the .same in each of the public meeting-houses in said town, eight days before the time for holding said meeting.
SAMUEL B. WHITE,
Constable of Whately.’
‘ At a legal meeting of the inhabitants of the town of Whately, qualified to vote in elections, held according to the foregoing warrant, Nov. 14, 1842, the following votes were given in, viz.:—
For register of deeds, Charles Williams had eighty-five.
“ “ “ Horace W. Taft, “ seventy-six.
“ “ “ Waitstill Hastings “ twenty-seven.
“ íS a Almond Brainard “ three.
Voted to dissolve the meeting. A true copy of record,
Attest, SAMUEL LESURE, Town Clerk.’
The facts here disclosed are, that Horace W. Taft and Charles Williams were voted for, for register of deeds, at the same meeting at which a representative was voted for, and that, excluding the two votes for ineligible persons, given fob register of deeds, and not for representative, Mr. Nash had a majority of the legal votes of all voting for representative.
The committee agree in all the points raised in Mr. Nash’s ease, except two, viz.:
1st. Whether the two register votes ought to be excluded, which would elect Mr. Nash.
2d, Whether Abner Feld was an illegal voter, and his vote should be excluded, which would also elect Mr. Nash.
On the first point, the undersigned rely on the practice, almost uniformly recognized by the house, of not counting votes *452for persons ineligible to the office for which the votes appear to be cast.
This rule has been recently recognized and applied by the common council of the city of Boston, by a vote of thirty-one to eight, to the exclusion of three democratic members returned from ward one, in that city. In that case, three votes cast for persons not resident in ward number one, and therefore ineligible, were excluded from the count, although the ballots bore no designation but the names of the persons voted for. We refer to this case because it was decided, upon the opinion of a distinguished legal gentleman, Hon. John Pickering, the city solicitor; who was consulted by the common council, and founded his opinion entirely upon the course of proceedings and the precedents established by the legislature of Massachusetts. In that opinion he says: —
{ The same word, the word inhabitant, being used by the constitution, in describing this qualification of the representatives of towns, and by the city charter, in describing the same qualification of the representatives of the wards of the city, the precedents (from elections in the house) are entitled to the highest consideration; and, in the absence of decisions to the contrary, in cases of municipal elections, they appear to be decisive authorities for the conclusion, that any votes given for a person as representative of a ward, when it is ascertained that he was not an inhabitant of said ward, would be deemed in law to have been erroneously given, and ought not to be counted by the common council, when that body should be called upon to exercise its right of judging upon the election of its members.’ The Whately case is much stronger than this. The votes for Taft and Williams were not only given for persons not resident in the town, and therefore ineligible, but they bore on their face the intent of the voters, not to cast them against any candidate for representative. On both votes were the name of the town, and £ for register of deeds.’
The two pieces of paper read thus, ‘ Horace W. Taft, for register of deeds‘ Charles Williams, of Deerfield, for register of deeds.’ This is proved by the depositions of the three se*453lectmen, who testify to the word 1 Deerfield,’ on the Williams vote, and by the deposition of Josiah Allis, who testifies to the words, ‘ for register of deeds.’
Let us then apply the test of the intent of the voters, which ought to govern.
Did Mr. Nash receive a majority of the legal voters, voting for representative ?
This is the test which the supreme judicial court have applied in the case of Elisha Strong, Petitioner, 17 Pick. 493, They there say: — ‘ All the votes should be counted for the persons for whom they were, intended, whether designated by residence or other addition, or not.’ ‘ The only object should be to ascertain the expressed will of a majority of the electors. If the evidence is such as to produce reasonable conviction of the will of the electors, expressed by their ballots, it should be allowed to have its legitimate effect.’
This is all we ask in the case of Mr. Nash. Again, applying the test of common senge, is it possible to suppose that in the town of Whately, where all the voters must be known to each other, two voters would each deposit a vote for a nonresident known to all to be a non-resident, with the name of another town on the vote, and the words ‘ for register of deeds/ with the intent, to have those votes count for a representative from the town of Whately, especially when a box was open at the same time, for votes for register of deeds ?
In this view of the case, it is not necessary for the house to decide, whether votes for ineligible persons, aside from the intent of the voter, ought to be counted or not. They have only to decide whether votes plainly not given for a representative, but for another officer, ought to be counted, contrary to the obvious will of the electors, who east them against neither candidate for representative, and with no intent to defeat the election.
The committee all agree, that the vote for Plorace W. Taft should not be counted, because the voter who cast that ballot testified, that he intended it for register of deeds. The person who deposited the vote for Charles Williams, for register of *454deeds, has not been produced, and is not known. Is not his intent as clearly shown by the designation on his ballot, as if he also had testified, that lie did not intend that vote for a representative from the town of Whately ?
The same reasoning that excludes the first, founded on the intent of the voter, must apply to the last, and therefore, both stand on the same ground, and both ought to be excluded, and Mr. Nash is entitled to his seat.
The second and only other ground of difference in the committee is as to the legality of the vote of Abner Field. Even granting what our colleagues on the committee assume, viz.: that the Charles Williams vote should be counted against Mr. Nash, still, if the vote of Mr. Field for White was an illegal vote, Mr. Nash is elected.
The deposition of Mr. Field is conclusive on the question of residence. He testified, that he had resided with his father in Hatfield for eight years, and held a farm there; that he came to Whately on the 29th of March, 1842, to work as a hired man, for seven months, for Charles Russell; that he intended to return to Hatfield at the expiration of the term for which he had let himself; that he used to return home to his father’s on Sundays, as often as once in two weeks, as a general thing; that he considered it his home at Mr. Russell’s during the first part of his stay there; if he had been sick, he, should probably have been carried to his father’s, and during this time he intended to return to Hatfield at the expiration of his time-; in July, he had an opportunity of hiring a farm in Whately, and letting his farm in Hatfield, which was the cause of his changing his mind about returning to Hatfield; about the 25th of July, 1842, he determined to take the farm in Whately, and become a resident there ; that before the 25th of July he continued to intend to return to Hatfield at the end of the seven months ; that he hired the farm in Whately on the condition that if the owner sold it, he was to give it up, and he let his farm in Hatfield, on the condition that the occupant was to give it up, if he wished to return, The owner of the farm in Whately had given him *455notice that the farm was sold, and the purchase* was about moving into the house, lie expected to return to Hatfield when he left that farm. On the 13th of October, 1842, he was published in Hatfield to be married, and took his certifi* cate from the town clerk of Hatfield, and was not published in Whately. He adds, that on the day of the election (November 14th) he had resided in Whately with the intention of remaining there, from the 25th of July last.
Applying to this state of facts the law of residence, as settled by the supreme judicial court, in the cases of Thorndike v. Boston, 1 Met. 242, and Sears v. Boston, ib. 256, and as construed uniformly by the house, in all cases of contested residence, the intent must fix the period of a change of residence. In Abner Field’s case, he did not change his fixed residence in Hatfield, but was a legal voter there until the 25th of July, 1842, less than six months before the election. It may even be doubted whether he changed his residence then, as his residence in Whately depended upon the,contingency of the farm he hired being sold.
His obtaining his own publication in Hatfield, on the 13th of October, which the law requires shall be taken out in the town where a man, dwells, brings his intention down to a month within the time of casting his vote.
The consideration of this whole case is thus narrowed down to two single points, which are presented for the judgment of the house, namely
1. Ought the vote for Charles Williams, for register of deeds, to be counted against Mr. Nash, as a vote for representative 1
2. Ought the vote of Abner Field to be counted as a legal vote ?
If either of these questions is settled in the negative, Mr, Nash is entitled to his seat. We think that both should be so settled. We then, also, have two legal votes that would have been given for Mr. Nash, (namely, Brown and Willard Belden) wrongfully excluded by the selectmen, against which there is no offset; and, in the whole view of the matter, if the *456design is to give effect to the declared will of the elector ‘ under the guidance of good practical sense,’ we see not how the house can refuse to recognize Mr. Nash as legally chosen a member by a majority of all the legal voters voting for representative, or claiming the right to vote.
We therefore recommend the adoption of the following order: Ordered, That Thomas Nash, Jr., is entitled to his seat in this house.”
The report was first amended by substituting, for the conclusion thereof, the conclusion of the counter report, and then accepted; and it was accordingly — ■
Ordered, That Thomas Nash, Jr., is entitled to his seat in this house.1
65 J. H. 5.
Same, 6.
Same, 7.
Same, 8.
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.
65 J. H. 12.
Same, 13.
Same, 32.
Same, 299.
65 J. H. 373, 374. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502571/ | The election of Luther Moody, returned a member from this town, was controverted by Benjamin H. Smith, and sixty others, on the following grounds, stated by them in their petition: *—
“ The facts are these: — No choice of representative was made in said Rowley until the fourth Monday of November, and then in this wise. The meeting was opened at 9 A. M. One balloting was had before dinner, which resulted in no choice; the highest candidates having as many votes as the *457said Moody had when he was elected, and still wanting many votes of an election. The meeting was adjourned to the afternoon ; and on the first balloting after dinner, when the votes were nearly or quite all in, and the poll had been opened from one to two hours, it was said by the selectmen that one man had put in two votes ; whereupon, without closing the poll or counting the votes, the selectmen emptied the ballot-box upon the floor of the house, and proceeded to ballot again. If any choice had been efleeted at that ballot, Moody was not elected, as he was not a candidate at that time. Many of the voters had left the house, and did not cast their votes on the. last ballot. And furthermore, the poll on the last balloting was kept open only fifteen or twenty minutes, to the extent, being closed by the chairman of the selectmen before sunset, and in the face of numerous objectors and voters, who were within the house, and hurrying to the box, and who would have turned the scale if they had been allowed to vote. In addition to this, it is believed that many names were not checked before the votes were deposited.”
The committee on elections, to whom the case was referred, reported a statement of the evidence, from which it appeared, that the allegations in the petition were substantiated on the hearing. It also appeared, that after the ballot-box had been emptied by the selectmen, which was done without any fraudulent purpose on their part, the selectmen forthwith proceeded, without objection, to another balloting; that immediately previous to the last balloting, at which Moody was elected, the electors refused to dissolve the meeting; and that when the balloting had lasted from twenty to thirty minutes, the chairman of the selectmen gave notice, that if no person in the house wished to vote, he should close the poll; and, no one coming forward to vote, he closed the poll at once, just as the sun was nearly out of sight.
The committee concluded their report as follows: —
“ The warrant for the meeting contained no notice how long the poll was to be kept open.
The record of the meeting shows, that on the first ballot *458the whole number of votes was 156; Thomas E. Payson 67; Daniel N. Prime 66; scattering 23. On the second ballot, whole number 142; Thomas E. Payson 60; Daniel N. Prime 41; Luther Moody 28; and scattering 13. On the third ballot, whole number 138; Thomas E. Payson 52; Luther Moody 65; and scattering 13. On the fourth ballot, whole number 132; Luther Moody 69; Thomas E. Payson 42; and scattering 21.
The committee, in view of all the facts of the case, were of opinion, that the overturning of the ballot-box by the selectmen, under an impression and belief that a person had voted twice, was an irregularity; but that as it was done without a fraudulent intent, received the tacit assent of the town present, and was further acquiesced in by the town’s subsequent vote, refusing to dissolve, and was followed by a ballot but little diminished ill numbers, they did not think it should vitiate the election and deprive the town of its representation.
The committee were further of opinion, that the poll might possibly have been kept open longer, and possibly votes might have been received, which would have varied the result. Yet the town at a late hour had by vote refused to dissolve, showing thereby a strong desire to be represented. It was the duty of the selectmen, as far as possible, to prevent that wish from being thwarted by any breach of the (commonly called) sunset law. The committee were by no means led to believe, that there was any intention on the part of the selectmen to prevent citizens from voting; all those, who it is represented were late, and were excluded, had been at the meeting in the course of the day, and went away, relying upon their own calculations of a seasonable return, or perhaps with no intention of returning unless sent for.
In a ballot which had but six less votes than the immediately preceding trial, the committee think they can see no cause for a belief, that it was an illegal expression of the public voice, and therefore recommend that the petitioners have leave to withdraw.”
This report was agreed to.1
65 J. H. 102, 136, 170, 171, 275. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502572/ | The election of Francis Howe, returned a member from this town, was controverted by Ebenezer Merriam and others, on several grounds stated in their petition, upon which the committee on elections made the following report:—
“ The petitioners assumed the following grounds:—
‘ First. Because, at the meeting held for the choice of representatives in said Brookfield, in November last, the votes of one or more legal voters, duly qualified to act in said meeting, were rejected in the said choice.5
‘ Second. Because the votes of one or more persons, who were not legal voters, were received and counted in said choice.’
‘ Third. Because the names of one or more voters who applied, or caused application to be made, to have their names placed on the list of voters, were not placed thereon, and they were thereby excluded from voting, and prevented from offering their votes.’
‘ Fourth. Because the said Francis Howe, Esq., was not chosen as representative from said town in conformity with the provisions of the constitution and laws of the commonwealth.’
In support of these grounds, the petitioners produced, first, the record, by which it appeared, that the whole number of ballots was 538; necessary to a choice, 270; Francis Howe had 270; Mr. Walker had 264; Mr. Morse had 4.
The petitioners then produced evidence tending to show, that one William Be mis was not a legal voter, and had voted at that election for the sitting member.
The committee, however, — perceiving that if his vote should be rejected, the return would still stand, whole number, 537; necessary to a choice, 269; Francia Howe had 269; Mr. *460Walker, 264; and Mr. Morse, 4; and that the return of Mr. Howe would still have been correct, — called upon the petitioners to produce further testimony under some one of their other propositions.
The petitioners thereupon undertook to show that Benjamin J. Lincoln, Jonas Bellows and Philo Ledoyt were all legal voters, and were not allowed to vote.
But it appeared that Jonas Bellows, being informed that his name was not on the voting list, did not go to the meeting at all, and that Benjamin J. Lincoln and Philo Ledoyt, though they attended the meeting and tendered their votes on the first or two first ballotings, yet that neither of them tendered a vote on the balloting which resulted in the election of Francis Howe.
The committee could, therefore, see no cause to complain of the rejection of votes which were not offered; and as the acceptance or rejection of the vote of William Bemis would not have affected the result, they recommend, that the petitioners have leave to withdraw.”
The report was agreed to,1 and it was accordingly ordered, that the petitioners have leave to withdraw.
65 J. H. 171, 228. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502574/ | The election of Thomas K. Wilbur, returned a member from this town, was controverted by William B. Mason and others, on two grounds, first, because the whole number of votes given in at the election, when the member was supposed to be elected, was reported by the selectmen to be six hundred and fifty-eight, necessary to a choice three hundred and thirty; and that the member returned had the last mentioned number; whereas, in truth, the whole number of votes was six hundred and sixty-one ; and the selectmen, in counting the_votes, threw out and did not count three lawful votes, which were not given for the sitting member, but for another person ; second, because the selectmen received a great number of illegal votes given for the sitting member, by persons, naming six, who were not qualified voters.
The committee on elections, to whom the petition was referred, made a report thereon, accompanied by a statement of the evidence, of which, it is only necessary to give extracts *466from the testimony of three of the selectmen, relative to the first point, namely, the rejection of three votes.
William Barker, who was one of the selectmen, and present at the meeting, testified as follows :—
“In assorting the Totes, perhaps we had assorted one-third of them, when I discovered three votes connected very closely together. I can show the committee the form of them. [Here the witness described to the committee the manner in which they were doubled.] They had the appearance of two votes when I first took them up. I took them up to look for the name on the vote. The first one was for Mr. Potter. I took that one off. I then looked at that remaining in my hands to see the name. Hot seeing it very plain, I turned it over.' I then suspected there were two votes. They stuck together, and I used considerable ‘sucking’ with my fingers, in order to get them apart. The corner of the whole was doubled over. They were all for William Potter. I showed them to the other selectmen. Mr. Packard took them, and laid them out on the board for future consideration.
We proceeded on, and directly I discovered two votes. They were twice doubled. [Here witness showed to the committee the mode in which they were doubled.] When the other ones were separated, one of the selectmen said : ‘ If you find any others, hold them up so that people can see them.’ When I found them, I held them up, and said, 1 What do you say to them ?’ Mr. Daniel Howland said, ‘ It is a rascally piece of work.’ I then said, speaking to the other selectmen, what shall I do with them ? Mr. Daniel Howland said, ‘ Do what you have a mind to with them.’ They were then laid on the board with the other three. I examined to see for whom they were, and they were all for Mr. Potter.
VVe went on to finish sorting the votes. As we sorted them, Mr. Wilbur’s were put into a ballot-box, and Mr. Potter’s into a hat, and the three scattering votes into another hat. We then turned the Wilbur votes out of the box on to the board.
We took the three votes, when we had done sorting, and before we commenced counting, and put one of them into the hat — and the two votes, and put in one of them. Then we turned the votes out of the box on to the table, and proceeded to count. Mr. Daniel Howland interrupted us very much in counting. Mr. Wanton Howland said, ‘ You count and count loud, and I’ll look over you.’ I counted so, and when I counted 141 or 2, or something like that, Mr. Daniel Howland would say 43; and others seemed to interfere very much. When I had got through with counting Mr. Wilbur’s votes, the number was given to Mr. Packard, the town clerk, and he took them down.
DTpon cross-examination, the witness testified : I did not see any person deposit on the slide of the ballot-box more than one vote. I did not see any one put into the ballot-box anything which made it necessary that I should examine him on the spot, because I had the check list and Capt. Howland had the box. I saw something which called my attention to the fact, that it was attempted to put in more than one vote. I saw Mr. Howland when he spoke to Peleg Sloeumb ; he said to him, says he, ‘ You are too old a man to put in so many votes.’ He had five or six in his hand. He went to the box, and Capt. Howland pressed his hand between the votes and the box, and prevented him from voting. I saw nothing else of the same kind. I don’t know whether Mr. Sloeumb voted afterwards or not.
I rejected the two votes because they were folded in such a way, that it appeared that •they were put in by one man. I made my determination solely on their appearance. *467I decided on the three votes on the same evidence; have no particular knowledge of the course pursued by Capt, Howland in pressing down the votes/’
Wanton Howland, also one of the selectmen, testified as follows:—
u In sorting the votes, we found six written votevS among the others, and I knew two of them to be Wilbur’s votes, for I wrote them myself; the other four I concluded then were scattering votes. On examining them, however, I found one of them to be for Mr. Potter, and three for Mr. Anthony ; and -when we were assorting the votes, Mr Barker held up a parcel of votes — very square — and says to me, ( What shall be done with these votes r’ He laid them down by themselves. He still continued to count, and soon took up another bunch of votes, and says, ‘ Here is another bunch of votes stuck together.’ I observed to him it was best to put them with the others till we got through. We went on and finished sorting the votes.
The next thing was, what disposition shall be made of these two bunches of votes ? My first impression was, that we should throw them all aside; but Mr. Packard said it was best to put in one from each, after satisfying ourselves that they were put in by one man, and to that all agreed.
I was satisfied then, and am now, that each parcel was put in by one man. Have not any doubt of it any more than if I had seen them. They were all for Potter ; the two votes were faced together. There was only one vote in the whole that the name was visible on; that was the first one in the parcel of three, the two under ones in parcel three, and the two others were each faced together. They were so put together that they could not possibly have got together in the box. The names were facing inwards on the two under ones of the parcel three, and the corners of three were turned down. The two votes were doubled in the middle and no name to be seen when Mr. Barker passed them to me. Mr. Barker examined them before I took them. "When we commenced counting the votes, we threw three of those votes away, and put two of them into the hat with Mr. Potter’* votes.”
Henry S. Packard, who was one of the selectmen, and also town clerk, of Dartmouth, testified as follows : — ■
111 heard some one, — indeed, several voices at the same time, — saying, < That man. has got more than one vote/ I looked up, and Peleg Sloeumb was in the act of voting. I saw Capt. Howland making a motion with his hand, and the votes were flying out of Slocumb’s hand. There was then a shout in the meeting.
Mr. Barker spoke, as they were sorting the votes, and said, 4 Here are three votes that I believe come in together.’ Capt. Howland said, ‘Better lay them away till we get through sorting.’ As he held them up, all three were a little parted, slipped by on one end. I said, ‘Mr. Barker, if you find any more votes so, you ought to be particular to hold them up, and show them just as they are.’ One corner was a little turned up as he laid them on the table ; I could not see it in his hand. Mr. Barker then held up two more ; they were doubled together, and appeared with a corner turned up straight, and as if they had been doubled down.
Upon cross examination the witness testified ; I give my description of. the votes as they appeared to me at the time. I observed that, 4 We will take two and throw away three votes.’ I 'did this on the ground that every person was entitled to one vote, and was satisfied from their appearance that they were put in by one man.”
The committee concluded their report as follows:—
*468“ It will be perceived, that the petitioners allege two reasons in support of their petition: first, that the selectmen threw out three votes which ought to have been counted against the sitting member; second, that persons not qualified voters were permitted to vote.
With respect to the first, the committee observe, that it will be perceived, by reference to the testimony of several of the witnesses, that, in assorting the votes, Mr. Barker, one of the selectmen, took from the pile of votes a parcel of three votes, folded together; that he called the attention of the other selectmen to it at the time, and that the parcel was laid aside for future consultation; that soon afterwards he found a parcel, of two votes doubled together ; that these also were shown to the selectmen, and to the bystanders, and were laid aside for the same purpose; that after the selectmen had finished sorting the votes, and before they proceeded to count them, these two parcels were examined; and they determined, unanimously, that three of the votes should be rejected, and two, one from each parcel, be counted; and three were rejected and two counted.
With reference to the conduct of the selectmen in this regard, the committee observe that there can be no question, that if there was full and satisfactory evidence that the three votes were cast by one man, two ought to have been rejected; and so if the two were cast by one man, one of them was properly rejected. The evidence to show these facts must of necessity often be, and in this ease was, derived from the appearance of the ballots at the time. It is difficult, to describe these appearances to the satisfaction of those not eye-witnesses. The committee believe that much, in these cases, is to be trusted to the judgment, integrity and good common sense of the selectmen. It is to be presumed that their judgment is correct, and the burden of proof is upon those who would question the correctness of that judgment. In this ease there is not the slightest imputation upon their candor, fairness and deliberation. We feel safer in relying upon the judgment of such men in such a case, than upon our own impres*469sions ; and although we adhere strictly to the general principle, that it requires the most conclusive and satisfactory proof of double voting, to justify the rejection of any vote; that a presumption of fraud is not sufficient, but that the selectmen must be satisfied, at the time, beyond all reasonable doubt, of the existence of fraud ; yet, we believe, in a case where there is no fraud imputed to the selectmen, we may safely confide in their judgment, and leave the responsibility of deciding the question of double voting with them.
In respect to the second reason alleged by the petitioners, the committee are of opinion, that the burden of proof was upon the petitioners, to show that the persons whom they alleged had voted illegally were not legal voters; and that the testimony of the witnesses themselves, as to their intention of residence, unless impeached, is to be taken as conclusive. The committee have examined each case with care, and cannot find satisfactory evidence to invalidate the vote of any one.
Wherefore, the committee recommend that the petitioners have leave to withdraw their petition.”
One member of the committee, (Mr. Kellogg,) dissenting from this conclusion, made a minority report as follows :—
“ The petitioners allege that the selectmen declared the whole number of ballots to be 658; and that Wilbur had a majority of them, viz.: 330, whereas, in truth, the whole number was 661, and Wilbur’s ballots were less than a majority.
The petitioners also allege, that six of Wilbur’s ballots were cast by as many different individuals not qualified to vote; but, in the opinion of the undersigned, neither of the six votes is invalidated by the testimony.
The testimony of the selectmen supports the first allegation, and they admit that Mr. Wilbur was not elected, if three votes against him, which were thrown under the table, ought to have been counted. The selectmen were of opinion, from the appearance of these three votes, that they were surreptitiously cast.
The majority of the committee hold this opinion of the *470selectmen (in the absence of any charge of fraud against them) conclusive; and that the house is thereby precluded from inquiring, whether the three rejected votes were spurious or genuine. From this opinion the undersigned, with great deference to his colleagues on the committee, is constrained to dissent. The house is declared, by the constitution, to be the judge of the ‘elections’ of its members. The first step, the house takes in the discharge of this duty, is to investigate the contents of the ballot-box, at the time the polls were closed. As in other cases of judicial investigation, the house must do it, not by personal inspection, but by the testimony of eyewitnesses. And the undersigned insists, that no barrier can be raised between the house and the ballot-box. The acts and judgments of the selectmen, affecting the election, are all subject to revision by the house. Their errors in rejecting votes cast, as well as their errors in refusing to receive votes, may be corrected. In either case, they must depend, not on the purity of their intentions, but on the judgment of the house, for their justification.
In the opinion of the undersigned, the rejection of the three votes from the count was wholly unjustifiable. True, the law makes the selectmen the guardians of the purity of the ballot-box. But it points out the mode in which they may exercise this guardianship, and, by inference, forbids them from adopting any other mode. They shall make the voters deposit their votes ‘ open and unfolded.’ If they enforce this provision, the presumption is, that the purity of the ballot-box is secured. Capt. Wanton Howland, chairman of the selectmen, who held the box, testifies, that ‘he,knew what the law required of him, and that it was his purpose to execute [it] in regard to every voter, and that he called upon them often to bring in their ballots open. That he noticed the votes as they came in, with a view to see if any were doubled, but that he saw none.’
Henry S. Packard, another selectman, and town clerk of Dartmouth, testifies, that ‘ he was aware of the law in regard to bringing the ballots in open, and, so far as he was concerned, that law was enforced.’
*471The selectmen hacine- done thus much, the undersigned thinks all the ballots in the box should be presumed genuine till proved spurious, ‘innocent till proved guilty,’ in accordance with a very precious maxim of law.
The undersigned submits to the house, that flic evidence scarcely raise's a su--pieion against two of the rejected votes, and that, in regard to the other rejected vote, the evidence docs not by any means reach the legal rule of excluding all reasonable doubt as to its spuriousness.
The undersigned thinks that it would be very dangerous, for the house to sanction the rule recommended by the majority of the committee, that the good intentions of the selectmen should shield their errors of judgment from correction by the house. He fears that such a ruling would enable selectmen, with very bad intentions, to disfranchise half of the citizens of the commonwealth with perfect impunity. The undersigned, therefore, recommends that the three rejected votes lie counted, and the adoption of the following resolution:-
Resolved, That the seat of Thomas Iv. Wilbur be declared vacated.”
The house agreed to the report of the committee,1 and the petitioners accordingly had leave to whhdraw.
. 65 J. H. 175, 221, 264. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502576/ | The following is the report of the second committee on elections in this case: —
“ The committee on elections, to whom was referred the petition of Henry Shaw and others against the right of John Young to a seat in this house, as representative from the town of Lanesborough, have carefully considered the evidence on the part of said petitioners, which consists of depositions here with s ufa m i tied.
The said petitioners allege, that the said John Young was declared to have one hundred and eight votes out of two hundred and fourteen, votes, being the whole number cast, and that one Isham Boon and one Varnum M. Babcock both voted for said John Young, and that neither had any legal right to vote in said election, and that these two votes being illegal, *474and deducted from, the number of votes given in and counted for John Young, will leave him with less than a majority.
To make out their points, the petitioners produced several depositions; but the committee could not find sufficient evidence to show that said Boon was not a legal voter, and, considering him to be a legal voter, the said John Young would be duly elected, even if the vote of Varnum M. Babcock was rejected. The committee did not, therefore, examine the evidence relative to said Babcock, or consider the question as to the legality of his vote.
The committee, therefore, recommend, that the petitioners have leave to withdraw their petition.”
This report was received and read, and ordered to lie on the table.1
65 J. H. 273. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502577/ | L\ the course of the proceedings which occurred previous to the organization of the house, it was stated that Hosea llsley, returned a member from Chelsea, in virtue oí a certificate of election, signed by the selectmen, and who had taken his seat, and participated in the proceedings as a member, was not legally elected, and ought not to have been returned; and a motion was made to amend the order, — relative to the right oí the two claimants from Wliatdy, and prohibiting them from exercising the functions of members, until their several claims had been investigated by a committee and decided upon by the house, — by the insertion therein of the name of the member returned from Chelsea, *475with a preamble in these words1, — “And whereas Hosea Ilsley, who lias been qualified as a member from Chelsea, and who appears by the records of said town not to have been elected, has taken his seat as a member —but this motion was decided in the negative, 172 to 176.
The election of Mr. Ilsley was subsequently controverted by George 0. Fairbanks and others,2 on the ground, that the election took place after the meeting called for the choice of a rep-resentativa! had been dissolved.
It appeared by the petition and evidence in the case, that at tire meeting of the town of Chelsea, on the 14th of November, 1842, it was voted to send a representative to the general court, but no choice was made, and the meeting was dissolved. A new meeting being called and held on the* fourth Monday (the 28th day) of November, it appeared by the record of the meeting, that it was first voted to reconsider the vote, whereby the town voted to send a representative to the general court, and then that the meeting be dissolved.
The petition being referred to the committee on elections, the petitioners contended, at the hearing, that the town when assembled in town-meeting was present therein in their corporate capacity, whether the persons constituting the meeting were few or many, and was fully prepared to act upon all the matters specified in the warrant; that the meeting of the 28th was a separate and independent meeting, not at all bound by the vote at the meeting of the 14th to send a member, which was virtually reconsidered and reversed by the dissolution of that meeting without effecting an election; that the record being conclusive of itself on all matters previous to the dissolution, and the fact of a dissolution being granted, it would not be competent for the committee to go behind that recorded fact, and examine into the facts which took place after the dissolution.
The sitting member, admitting (for the purposes of the inquiry) the positions taken by the petitioners, contended, and introduced evidence to prove, that the alleged dissolution, being *476obtained by uproar, fraud, tumult and violence, was illegal; and that, in fact, the meeting was not legally and properly dissolved, until after he bad been declared elected.
Much evidence was given on both sides, and stated at length by the committee, as a part of their report, relative to the point in question; but as the house appear to have decided, upon the evidence, that the dissolution of the meeting was not effected in the manner alleged by the sitting member; it will only be useful to present so much of the testimony, as may be necessary to explain the report of the committee, and the views of the minority as presented by them. For this purpose the evidence of two of the selectmen will suffice.
The testimony of Ebenczer Currier, who was chairman of the selectmen, and presided at the meeting of the 28th of November, was in part as follows :
“ Prayers having been offered, — a motion was made to reconsider the vote of the former meeting, which was to send a representative. Several persons wished to speak on the question, and great disorder ensued; there was no constable present, and I at last put the question and decided that the vote was reconsidered. A motion was then made that the meeting be dissolved. The question was put, and one or more persons wished to speak. There was so much disorder and cries of question, that they could not be heard, and it was decided by me, that it was a vote to dissolve the meeting. One of the selectmen said, ‘ It was not right; that persons ought to have a right to speak,’ and we concluded that a vote taken under such circumstances of disorder was illegal. We did not say so, however, to the meeting, except so far as that we declared, that a majority of the selectmen had determined to receive votes for a representative.
Immediately on my declaring the meeting dissolved, and while Mr. Cummings and myself were conversing together as above, the clerk had proceeded to present the box and call for votes for a moderator. No part of the warrant was again read, at that, time; the whole warrant had been read at the beginning of the meeting. I think I heard the vote to dissolve the meeting doubted; the house was upon that divided, but not counted ; for the appearance on inspecting the sides was as two to one. No measures were taken to see if those voting on either side were legal voters. It was again declared to be a vote.
It was about from fifteen to thirty minutes from the time that I last declared the meeting to be dissolved, to the time when I announced that a majority of the selectmen had concluded to receive the ballots for representative.
I cannot say if there was a division of the house on the question of reconsideration, there was such confusion that the gentlemen claiming a right to speak could not be heard, — I mean that it was so great that the inhabitants generally could not hear what was said. I suppose they heard the motions when they were put, though I cannot say they understood them. I put the question, ‘'Shall the meeting be dissolved ?’ people attempted to speak, and then there were cries of ‘ question.’ These *477would cease, but if any one attempted to speak, they were renewed. Thus it was still, when I said 'please to manifest,’ — and when it was doubted, there were no cries or clamor, to my recollection. Mr. Cummings spoke to me, as I have stated, privately, at the time ; there was no other public or private protestation against the vote.
I think it was after the clerk had declared that a moderator was chosen, that I announced our determination to receive votes. I can’t say that any time was fixed for keeping the polls open to receive votes for moderator. The moderator had not come into the desk, and the selectmen had not left it. I had not left the desk from the beginning of the meeting until a representative was chosen. The town business was suspended, while we received votes for representative. I have no recollection of any attempt at that time, at a speech, or of any opposition to our proceeding ; subsequently, a kind of protest signed by about sixty names, was placed on our table. I did not pay any attention to see if any persons left the house during the balloting for moderator. At the time the house was divided, the number of persons present was not less or more than one hundred and fifty.
The clerk proceeded to collect votes for moderator without consulting me ; he did it, I presume, at his own instance. The vote for moderator was not large ; the result of the ballot for representative, as announced, was, whole number two hundred and twenty-one. For Mr. Hosca Ilsley, one hundred and twenty-nine, — for Abner Gay, seventy-five, and seventeen scattering. I declared the result, I did not stop to see if the count was true. I can’t say that the motion to reconsider was doubted, — there was a division on one vote, and my impression is that that was on the motion to dissolve. I cannot say about a committee’s having been chosen to wait on the moderator and see if he would accept, or whether that was before the selectmen resumed action or not.
I did not object, and I kfiow not of any one’s objecting to the clerk’s proceeding to receive hallotings for moderator-, — I think I spoke something to the clerk about it, but don’t remember what. My reasons for agreeing to receive ballots for representative were, that a number of persons came and presented votes, and claimed a right to deposit them, and also the votes had been taken amidst such noise and confusion, that I thought it not right. I recollect no threatening or intimidating language addressed to me, to induce vs to receive votes. I thought Mr. Gould pretty anxious to vote.
I couldn’t keep order; I could see no constable; the people would be quite still while I put the questions, but if any one attempted to speak, there would be cries of ‘ question.’ I have no recollection that Mr. Bates, the constable, was present. I did not ask for one. I remember thinking about one. Mr. Beatty, the town clerk, was present, sitting by me, but I had forgot he was a constable. I did not desire to hurry proceedings. I did not, by word or act, attempt to preserve order ; I can’t say if there were any unsuccessful attempts to speak before the hand vote on the question of dissolution.
I think there were addresses made to me as chairman. I think Mr. Nowell addressed me before the hand vote on. the dissolution. I don’t know that Mr. Nowell was in the room before the balloting for moderator.”
Daniel Cummings testified as follows :—
“ I am, and was in November, a selectman of the town of Chelsea. We went into the desk about half past twelve, the warrant was read, and prayers were offered, and we were about getting the list of voters ready, when a motion was made to reconsider the vote of the former meeting. It was seconded, and put very quick and carried. Immediately a motion was made to dissolve the meeting, — the vote was taken and *478declared. It ivas a hand vote. It was doubted. The house was divided, not counted. We were satisfied there was a majority for dissolving the meeting, by their appearance. All this took place very soon after the meeting was opened. No means were taken to ascertain if the persons voting were qualified voters, nor were there any exceptions taken to any one who voted. Two or three persons attempted to speak. I can’t say that any person attempted to speak on the question of reconsideration. Two persons did on the last question, and perhaps more. There was so much noise round the room, and the question was put so quick that there was no chance; still I do not think the chairman announced or named any one as wanting to speak. I saw persons get up and take off their hats, and say, ¿ Mr. Chairman ■’ One man, (I think it was Mr. Nowell,) got on some steps, that were in the room, and said so, but the chairman did not respond to him. They {the meeting) would cry ‘ question ' question!’ and would not let him speak. I cannot say that the chairman attempted to bring the meeting to order, and give persons a chance to he heard. The question was put amidst the noise. They would stop and hear the chairman, but, if any body else attempted, they would raise the cry of question. In fifteen or twenty minutes after the declaration of the dissolution, the box was held for votes for representative. On this step the three selectmen did not have what might be called a consultation together. I spoke to the chairman about it, and I saw him turn and speak to the others. I expressed my opinion that it was wrong to dissolve the meeting, that the citizens had been called together to vote for a representative, and ought to go on; that there was nothing in the warrant about reconsidering, and that therefore the proceedings were illegal. My only reason was, that I thought it was not common sense to call the people together to choose a representative, and then dissolve without choosing one. I thought, too, that there was no opportunity for people to express their minds and opinions. I said so to the chairman. Previous to the last motion’s being put, I said so to him, and he made me no reply.
I heard nothing said about a constable. One man came, and demanded as a right to put in a vote for representative. I cannot tell whether any citizens quit and went away after it was declared that the meeting was dissolved. Some were going out and in; there were other rooms in the building, and the matter of the town-hall was in the warrant yet to be acted upon.
The clerk figured up the countings, and returned or handed them to the chairman, and he stated the result to the meeting. Two hundred and twenty-one was the whole number of votes, I think. I counted and gave in seventy-three votes. No one counted after me; there are about five hundred and eighty voters on our list.
No votes had been thrown into the box for representative before the chairman declared that we were ready to receive them. Mr. Currier had, and used, the check list. I cannot say that I heard any one express a desire to speak before the putting of the hand vote to dissolve. There were cries of question, 1 am sure, before that vote was doubted. There was considerable noise in the room, stepping about, and people rushing up before the hand vote was put on the dissolution motion.
I do not recollect that the clerk read any part of the warrant after the motion to dissolve was put. He proceeded to receive the ballots for moderator, and I did not dissent, and I don’t know that any body did. Mr. Abner Gay was declared elected moderator, and a committee was appointed to go for Mr. Gay. TVe had begun to ceive ballots for representative before I knew that Mr. Gay had arrived. I am sure he had not attempted to act as moderator.”
*479The conclusion of the report was as follows: —
“ After the testimony was closed, the case was argued by Messrs. Brigham and Hallett, the petitioners contending that the subject of the choice of a representative to the general court being stated in the warrant, it was competent at any time before the poll was opened, and after the reading of the warrant, for any voter to move a reconsideration of the vote adopted at a former meeting for the choice of representative, or to move that the meeting be dissolved; the petitioners contended that this is the corporate right: of the town, and that the decision of these questions in the affirmative must, of necessity, be conclusive upon the town : they also further contended, that the vote of dissolution having been declared to be carried, all proceedings afterwards were null and void, and that it was not in the power of the selectmen to resuscitate the meeting.
The counsel for the sitting member, on the other hand, contended, that it was not competent for the town to reconsider the vote passed at the former meeting, because the matter of reconsideration was not stated in the warrant, and he further contended, that the proceedings were illegal, because fraudulent, and did not allow a fair discussion and expression of opinion.
In reference to the first point, the committee are unanimously of opinion, that the matter of choice of representative being stated in the warrant is amply sufficient to entertain any motion in relation to that subject, and that the matter of reconsideration is an incidental question, which was perfectly in order, under the warrant, before the poll was opened.
The committee arc also of opinion, that the right to reconsider is a corporate right of the town, and that, if that motion prevailed, or if the town had voted not to send a representative, the action of the town would have been legal; and a dissolution of the meeting, after such proceedings, would have effectually precluded a choice of representative on the 28th November.
But the ease presented by the sitting member is one, which calls for the grave consideration of the committee and the house, and the correct decision of which, though not to be *480arrived at without some difficulty, is of the utmost importance, and ought earnestly to be desired by members of all parties; as the decision of ‘the Chelsea case’ will doubtless be referred to in time to come, as a very important precedent in reference to other cases at all resembling this.
It is admitted fay the sitting member, that a motion was made for reconsideration and for dissolution ; and it is contended by the petitioners that these several motions were carried, and so declared by the chairman ; but it is urged by the sitting member, that owing to the whole course of proceeding at the meeting on the 28th, by which said alleged dissolution was effected, the votes of reconsideration and dissolution are to be regarded as a nullity, and that the selectmen, in receiving votes for representative, and declaring the election, and certifying the result to the house of representatives, did no more than it was their duty to do under the laws of this commonwealth.
Two questions are thus presented for the consideration of the house:—
1. Can a state of things be supposed, which would justify the selectmen of a town in proceeding to receive votes for representative, after a vote of dissolution has been declared by the presiding officer to be carried?
2. If such a state of things can once be supposed, does the evidence in the present case exhibit such a disorderly and riotous proceeding, as justified the selectmen in receiving votes for representative subsequently to the alleged dissolution ?
On the first point, a majority of the committee are of the opinion, that although the case must be a very strong one which would justify such a course on the part of the selectmen, yet that such a case is supposable.
A tree and full expression of the popular will, upon matters submitted for the action of the voters, is essential to the continuance of free government, and this will is expressed both by speaking arid voting; thus it is conceded, that a fair vote, by an undoubted majority on a show of hands, or by a poll of the house, should be conclusive upon the selectmen and the voters themselves.
*481But the right to speak, by way of expressing our own opinions, and with a view to influence others, by arguments addressed to their consideration, is as important as the right to vote ; and a result, obtained by preventing such an expression of the will of the legal voters present at a meeting, is virtually a fraud upon them, whether so intended or not, and ought to be treated as a nullity.
If a motion should be regularly made to dissolve a meeting, and the chairman should, without good cause, refuse to entertain the motion, or to submit it to the meeting, it would undoubtedly afford good ground for a petition against the seat of a member, who should be elected at such meeting subsequent to such refusal.
If, then, there is a determination manifested by four-fifths of a meeting that the remaining one-fifth shall not be heard upon a question, and the chairman, whether by fraudulent connivance or through timidity or imbecility, allows himself to be used by this majority to overwhelm, stifle and effectually prevent the utterance of a single word of debate on the question, or of remonstrance against the proceedings, or of argument and reasons in favor of an opposite course of proceeding, shall a vote, obtained under such circumstances and in connection with such suppression of debate, be regarded as valid ? especially if, upon reflection, the presiding officer himself, who has been used to secure such a vote, virtually declares it to be a nullity and acts accordingly ?
The committee cannot believe that the house will assent to the exercise of such power, or say, by their action, that a dissolution obtained under such circumstances is anything more than a nullity.
To hold an opposite opinion is to maintain that it is competent for selectmen, or even for one selectman without the advice or consent of his colleagues, to dissolve any meeting called,for. the election of representatives, even though every man in,the hall, with the exception of the chairman and the man,who makes the motion, is acting under misapprehension; amhthus a town may lose its representation for a year, past, remedy, *482simply by the perfidy or the ignorant action of the chairman of the selectmen.
As to the second point of inquiry, viz.: were the proceedings at Chelsea, on the 28th of November, such as justified the selectmen in receiving votes for representative, notwithstanding the alleged vote of dissolution; a majority of the committee entertain the opinion that they were.
The evidence, upon which this opinion is founded, is fully reported to the house, and it is unnecessary to recite it in this connection.
It appears, that it was the intention of a number of the democratic party, to prevent if possible any attempt to elect a representative on the 28th, because they were not satisfied with the caucus candidate. Great efforts were made to procure a full attendance, at the time specified in the warrant for the opening of the meeting, as appears by the arrival of the omnibus loads of voters at an early hour; and the clerk was severely censured for dilatoriness, on his arrival at the hall, and the meeting was opened at a period unusually early, as appears from what is proved to have been the custom of the town.
These circumstances, however, though taken in connection with subsequent events, they show that the manner in which the alleged dissolution was effected was a matter of concert and predetermination, yet in themselves considered, would not form any adequate ground of objection to the supposed dissolution. Indeed, far be it from the majority of the committee to deny the utmost latitude of the right of meeting at the democratic or any other head quarters, and discussing either the claims of candidates, or the expediency of foregoing the right and privilege of town representation.
But when these previous discussions give rise to a course of proceeding, such as took place at Chelsea, at which a warrant was read — a prayer made — a reconsideration moved and carried — the house divided — a motion for a dissolution made, and asserted to be carried, and the house divided ; and all this effected in from fifteen to twenty minutes of time — and no per*483son allowed to speak, though many attempted to do so, but were prevented by the meeting, by means of the cries of ‘question,’ which ceased only when the chairman stated the question, and commenced again whenever ‘ Mr. Chairman’ was heard ; and when no attempt was made by the chairman to produce order, or to secure an opportunity for a word of debate, by a single person who desired it; and, (to pass over intervening events.) when we find a proposition deliberately made in a meeting, organized by a chairman and secretary, (at which a protest was drawn up and signed during the balloting for representative.) to throw a handful of votes into the ballot-box; then do we regard these previous movements as part of an extended plan, which was to be accomplished by the use of means that are highly censurable, and which, if countenanced and imitated, must eventuate in the overthrow of free government.
Seeing the course of the meeting, some of the voters of both political parties were earnest in asserting their rights as freemen, and well they .might be, as long as they expressed their sentiments, and did not attempt to remedy evil, by the violation of law.
The selectmen, on consultation, and before the person who was said to be chosen moderator came into the box or attempted to act, became satisfied that they ought to proceed under the warrant, and receive votes for representative; they did so, and the record of this part of the meeting, though made at the same time and on the same memorandum book, with the other proceedings, was not copied by the clerk into the volume of town records, but was distinguished by the word ‘ remarks’ being placed over it, some days after the meeting. This record shows that Mr. Ilsley was elected by a clear majority ; 116 being the number necessary for a choice ; and although his vote is stated at 129, it appears by the testimony of two unimpeached witnesses, that there was evidently a mistake in the declaration of the count, and that he probably received many more votes, perhaps in all 231. The clerk himself admits, that he might have made a mistake in giving his *484count, which indeed is the only way of reconciling the error, as there is nothing in the evidence, or in the appearance of the clerk, to lead the committee to suspect for a moment, that the mistake, if committed, was intentional.
Under these circumstances, and in view of the evidence herewith submitted, the committee recommend that the petitioners have leave to withdraw.”
A minority of the committee, (Messrs. Thomas, Russell, and Williams,) dissenting from the opinion of the majority, as expressed in the foregoing report, presented their views to the house in a minority report, as follows :—
“ The sitting member claims to have been elected at a meeting of the citizens of Chelsea, held on the 28th of November. The town record, which was produced and sworn to, by the town clerk, shews no such election, but, on the contrary, that prayers having been offered, and the warrant read, a vote was passed to reconsider the vote of a former meeting, by which the town voted to send a representative, and then it was voted to dissolve the meeting.
The sitting member, with the leave of the committee, assumed to prove that the record was fraudulent, in respect to the votes to reconsider and dissolve. Of the success of this endeavor, the house will judge by the evidence. Every witness on both sides, who testified to that point at all, testified, that after prayer and the reading of the warrant, a motion was made and seconded to reconsider the vote passed at a former meeting, by which the town voted to send a representative ; that this motion was distinctly put to the meeting by the presiding selectman, and by him declared to be a vote, two-thirds present, at least, voting in the affirmative; that a motion was then made to dissolve the meeting, which was also put to the meeting by the same officer, and by him declared to be a vote, two-thirds, at least, voting in favor of it. The testimony further shows, that both of these votes were made certain by a division of the house, and that they were fully understood by the meeting.
The business of the town clerk, in the judgment of the un*485dersigned, is to record what is done in town-meeting; and as in this case, there is the fullest proof that these votes were actually put, carried and declared, we are unable to perceive how it can be charged, with any show of propriety, that the record is fraudulent. The record simply asserts a fact; that fact is borne out by the evidence. Where, then, is the fraud ? The question of the competency of the town to pass upon motions is one thing, the question whether or not the town passes upon motions is another thing; and the latter is the only thing with which the record has any concern. The quarrel of the sitting member, then, is not with the record. The record cannot be fraudulent, because what it alleges was done, was done.
It is admitted by the majority that the town was legally assembled; that the matter of choosing a representative was sufficiently stated in the warrant to authorize the town to entertain any motion in relation to that subject; that the motion to reconsider the vote of a former meeting by which the town voted to send a representative, was within the competency of the town to pass upon ; that such a motion was made, and made at the proper time ; and that, ‘ if that motion had prevailed, or if the town had voted not to send a representative, without reconsidering the former vote, the action of the town would have been legal, and a dissolution of the meeting, after such proceedings, would have effectually precluded a choice of representative.5 The only point in dispute, therefore, between the majority and the undersigned is, whether, in the language of the majority, the motions to reconsider and dissolve ‘ prevailed.’ And on that point the undersigned believe that the house will not want evidence to determine.
In the view of the undersigned, here is the end of the case. The town voted to dissolve the meeting; it had a right so to do; and whether for a good reason or a bad one, whether hastily or deliberately, so that the vote was made certain, there was the end of it. No subsequent act could give it vitality. Up to that time no representative had been chosen.
But here the majority interpose a new theory, certainly new *486to the undersigned. They gravely tell the house, that these votes are to be regarded as a nullity, and what took place afterwards was perfectly legal and proper. And the reason they allege for this conclusion is, that ‘ the whole course of proceedings on the 28th’ was exceptionable. The minority think with the majority, if indeed there be any virtue at all in precedents, that the correct determination of this question is ‘ very important,’ as forming a ‘precedent, for the decision of cases in future,’ and for this reason the minority regret that the majority had not been a little more explicit in their statement; ‘ the whole course of proceedings,’being a very indefinite expression.
On looking, however, to the statement of the argument of the counsel for the sitting member, as set out in the report of the, majority, the undersigned find that the reason urged for this conclusion is, ‘ that the votes were obtained by uproar, fraud, tumult, and violence.’ As the undersigned are not able to appreciate the difference between ‘ uproar ’ and £ tumult,’ they may, perhaps, be pardoned, if in considering this branch of the subject, they reduce these four specifications to three. The undersigned, would, however, first premise a word as to this new view of the majority. The dispute between us is still one of fact, namely, whether the votes above referred to 1 prevailed.’ And we had supposed that a vote of dissolution was none the less a fact for being obtained by fraud, tumult, or violence. If these votes had ‘ prevailed,’ say the majority, they would have effectually precluded the choice of a representative, but then they were obtained by uproar, fraud, tumult and violence. The undersigned are unable to understand how a vote can have ‘ obtained ’ and not have ‘ prevailed,’ for we had supposed that both words denoted the same fact, and the fact being admitted, we repeat, there was an end to the meeting.
If the distinction claimed by the majority be real, it can only be the pulling down one’s house with, or without the leave of the law. In either case the building is destroyed, though most of the materials remain.
Besides, suppose a vote taken amidst confusion is to be re*487garded as a nullity. Is not every vote taken under the same circumstances to be regarded as a nullity also 1 And if so, what becomes of the claim of the sitting member? If it be unlawful to reconsider a vote by fraudf tumult and violence, can it be lawful to elect a member of this house by the same means ?
But how stands the fact about the fraud, tumult and violence ? The house will bear in mind, that in this case, the burden of proof is on the sitting member. He claims to prove the record a fraud, and impeach the oath of the town clerk. He must then make out his case.
1. As to the fraud, where is the proof of it ? Does it consist in what was done before the meeting or at the meeting ? If before the meeting, in what act ? Was it a fraud in Has-kell to get people to go to the meeting early ? Was it a fraud in the people to agree to go to the meeting with a determination to vote not to send a representative ? though the evidence negatives the idea that they went there with that determination. The majority, it appears to the undersigned, conclude themselves against this argument, by admitting that the town was legally assembled and competent to act upon the motion, when it was put.
If it consists in what took place at the meeting, in what act ? Was it a fraud in Haskell to make the motions to reconsider and dissolve ? or in others to second the motions ? or in the chairman to put them to the meeting ? or in the people to vote for them ? Was it a fraud in Gleason to attempt to speak to the question ? or in others to call to order, when, in their judgment, he was speaking out of order ? or in the chairman, that he did not wait longer to hear him ? If in the chairman, then, the undersigned submit, his testimony ought to have been voted out of the case, for he was the witness of the sitting member, and by a rule of law known to none belter than to the majority, ought not to be held to criminate himself.
In respect to the alleged denial of the right to speak, the undersigned observe, that the testimony of Mr. Blaney is clear to that point: ‘ Mr. Gleason attempted to speak before the *488chairman stated the question, on the motion to reconsider. He had not then stated the question. The chairman said, “ I’ll state the motion, gentlemen, and you can speak after-wards.” I did not hear any one speak afterwards, before the vote was taken. The chairman said it would be open for debate after he had stated the question, or something to that effect.’ The testimony of Mr. Gleason himself is, that he merely said ‘ Mr. Chairman.’ And he and Mr. Haskell agree in the fact, that immediately after he made this call upon the chairman, Haskell went to him and, requesting him not to speak, called off his attention. The only person, whom the selectmen can identify as having addressed them on either question, was Mr. Nowell; and the proof is conclusive, that Mr. Nowell was not in the hall till the meeting had been declared to be dissolved. This appears from the testimony of Nowell himself, as well as from others.
Mr. Currier, the chairman, swears that he cannot say there were any attempts to speak on the hand vote for dissolution. And Mr. Cummings, the other selectman, has no recollection that any person attempted to speak on the question of reconsideration. Mr. Nowell is the only one he can recollect who addressed the chair.
Mr. Darius A. Martin, much the swiftest witness introduced by the sitting member, testifies that there were three or four persons attempted to address the chair, and soon after he magnifies them into a dozen; but he states expressly, that he can identify no one except Gleason, who attempted to speak before the hand vote.
The undersigned are sure that the house has but one rale for the settlement of the same question. And the house has decided, in the case of Rowley, at this session, that a knowledge of the wish of the person, desirous to be heard in town-meeting, must be brought home to the selectmen, to be material. Here it is only brought home in the case of Mr. Nowell, and that after the hand vote to dissolve the meeting. Will the house adjudge the town of Chelsea to have committed fraud upon such evidence?
*4892. As to the tumuli. The evidence is in some respects contradictory ; but the weight of it proves that the tumult was after the meeting liad been dissolved, and when the votes were being received for the sitting member. Mr. Slack describes the meeting at that point of time like the ‘ meeting of Ephesus but he also states that before the votes were put and declared, there was no more confusion than he has seen on former occasions at meetings in Chelsea. Mr. George C. Stearns, one of the most intelligent witnesses examined, testifies that there was sufficient stillness in the hall when the motions were put for any one to speak who desired to. Mr. Benjamin T. Martin swears that the meeting was as quiet as he ever saw a meeting in Chelsea, on the question to reconsider; and even the testimony of Mr. Darius A. Martin, the witness above referred to, leaves no doubt that the meeting fully understood the questions. He says: ‘ The chairman, I think, stated the question to the meeting. He then gave them to understand what the vote was.’ The undersigned are clearly of opinion, that the weight of evidence shows, that the confusion arose from the fact, that the whig party were dissatisfied with the votes to reconsider and dissolve, and it consisted in their expression of that dissatisfaction after the votes had passed; and subsequently in the dissatisfaction of the democrats that the polls were opened for representative after the meeting was ended.
In closing their remarks on this point, the undersigned invite the special attention of the house to the evidence touching the fact that no one urged, as a reason for the illegality of the votes to reconsider and dissolve, at the time, that persons had not been permitted to speak to those questions. In our opinion, it is proved beyond all controversy, that this is entirely an after-thought. Up to the time of the meeting of the legislature, it was placed solely on the ground, that the votes were not within the competency of the town to pass upon, inasmuch as no article to reconsider was put into the warrant. The sitting member placed the issue there; one witness says he has battled it day in and day out on that ground, and never *490heard of any other. The famous speech of Mr. Gould, made after the dissolution, related solely to the fact, that no article was in the warrant; and the legal opinion of Mr. Halle tt, written on the evening of the election, which was designed to cover the case, and, undoubtedly, to influence the action of the selectmen in regard to the certificate, has not a word on the subject of uproar, fraud, or violence.
Before adopting a rule fraught with such evil consequences, the undersigned pray the house to pause. A town may meet and vote to send a representative. The people go into the election, and a member is returned to this house, having a large majority of the votes. A citizen of the town may come before the committee on elections with a lie in Ids mouth, and, like Darius A. Martin, whom nobody ever heard address the chair, and who could not recollect himself that, he ever did till the day after his first examination, swear that be attempted to speak on the vote to send a representative, and that he was not permitted to be heard ; and on that evidence the election is vacated. What becomes of the corporate rights of the towns in this Commonwealth under such circumstances ?
Nor is this all. The vote of a town appropriating money, should the court adopt the rule, may be set aside for the same reason, and taxes never could be collected. In short, no town business could ever be legally transacted.
3. Violence. The undersigned have carefully attended to the evidence, written it out at length, re-written the greater part of it, and read the whole over and over again, but have nowhere found anything like violence to person or rights, if anything further is intended than we have noticed under the preceding allegations. And were it not for the high estimation in which we hold the character of the counsel for the petitioners who made the allegation, and for our regard for our colleagues of the committee who have endorsed it, we should feel constrained to conclude, that it was intended rather to give rotundity to a period, than as a serious charge to be proved.
The true state of this case the undersigned believe to be *491this: the democrats had two candidates on the 14th of November — Mr. Bent and Mr. Rrownson, — and failed of an election. On Friday evening preceding the 28th, the party met, and, dropping both of these candidates, agreed upon a third, Mr. Gay. On the following morning, one of the supporters of Mr. Rent, who was unfriendly to the election of Mr. Gay, expressed dissatisfaction that Mr. Bent, had been dropped, and endeavored to enlist others with him to oppose the election of Gay; three or four others joined with him in a determination to dissolve the meeting, but. on the same day, abandoned the determination, and prepared votes for Mr. Bent. The mass of the party prepared tickets for their candidate, and made other preparations for the election. The unusual interest which was everywhere felt in the elections of that day, and in which they participated, brought them early to the polls. Finding the friends of Mr. Bent unwilling to drop him and go for Mr. Gay, and despairing of any choice without such union, they determined, on the spot, with a solitary exception, to dissolve the meeting without going into an election ; and to insure legality in their proceeding, first reconsidered the vote of a former meeting. One of the selectmen, originally opposed to the vote to dissolve, readily consented to open the polls for representative ; the other, intimidated by demands from persons to vote at his ‘ peril,’ and by of her menaces, yielded acquiesence. 'TIjc third selectman, though introduced by the sitting member and sworn, was never called to the stand.
In conclusion, the undersigned submit:—
1. A town has the corporate right to vote not to send a representative, and may lawfully exercise that right under an article in the warrant ‘ to choose a representative.’
2. The proper time for exercising such right is after reading the warrant and before proceeding to ballot.
3. 'When a meeting has been declared to be dissolved by the chairman, and that decision affirmed by a majority of the voters present, all proceedings are concluded.
In view of which the undersigned recommend the adoption of the following order:—
*492Ordered, That the seat of Hosea Ilsley, the sitting member from Chelsea, be declared vacated.”
The report of the committee was first amended, by substituting for the conclusion thereof the conclusion of the minority, and then as amended, the same was agreed to, and it was, accordingly — Ordered, That the scat of Hosea Ilsley, the sitting member from Chelsea, be declared vacated.1
65 J. H. 12.
Same, 23.
65 J. H. 293, 368, 371, 376. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502578/ | The election of Jones Robinson, returned a member from this town, being controverted by a petition of Caleb Church and others, which was referred to the committee on elections, the committee made the following report thereon:—
“ The only allegation set forth in the memorial of the petitioners is the following: ‘ That at the late election for state officers, held in the town of Fairhaven, on the fourteenth day of November last, the whole number of ballots given in to the selectmen, for representatives to the general court, was six hundred and forty-six, and that a majority of the board of selectmen, ffi counting the same, did arbitrarily and unjustly, and contrary to the remonstrances of the minority of said board, throw out and reject one of the said ballots, bearing the names of two candidates supported in said election, in opposition to the members at present sitting in the house, as representatives of the said town, by which illegal procedure the number of votes necessary to a choice, was reduced to three hundred and twenty-three, and Jones Robinson having that number, was thereupon declared elected.’
*493In support of the foregoing allegation, the petitioners called several witnesses, viz,:—
Caleb Church, who testified as follows : — ‘ I am a legal voter in the town of Fair-haven, my name is on the check list in said town. At the town-meeting in November last, two boxes were used by the selectmen for the reception of ballots, one for state officers and the other for United Slates officers ; both of said boxes were labelled, but I did not know it at the time I put in my votes. I put my vote for member of congress into the box for state officers, and my vote for state officers, into the box for United States officers.
Mr. 'Whítwell, one of the selectmen, told me of my mistake, soon after I dropped my votes into the boxes. I think no one had voted after me, before I discovered my mistake ; it was very soon after ; two minutes had not elapsed before I discovered my mistake. I immediately asked permission to rectify my mistake, but the selectmen would not allow it. I asked Mr. Whítwell, and he refused my request. Mr. Whít-well held the box for state officers, and Mr. Clark the box for United States officers. I think I put my votes into both of the boxes at the same time; they being near together, so near that I could conveniently reach them, both at the same time. I did not look into the box to make myself certain of my mistake ; I had no other means to ascertain my mistake except what Mr. Whítwell told me. 1 had deposited my votes in both boxes, before I was informed of my mistake. I voted the whig ticket for state officers, and I intended to vote for the two whig candidates for representatives to the general court. I have been in the habit of attending town-meetings when I have been at home. Have followed the seas sometimes.’
F. R. Whítwell: — £ I am one of the selectmen of Fairhaven. At the town-meeting in November last, two boxes were used by the selectmen, in which to receive votes, both labelled, one for state officers, and the other for United .States officers. I held on that day the box for state officers, and Mr. Clark the box for United States officers. It was named distinctly in the warrant for calling the town-meeting, that the candidates for state officers would be voted for on one ballot, and for representative to congress on a separate ballot, and it was declared in the meeting again and again, by the selectmen, how the votes were to be received, and the voters were cautioned against depositing their ballots in the wrong box, for if they should happen to be so deposited, they would not be counted, for it had so been .determined by the selectmen. The boxes were held by Mr. Clark and myself, about two feet apart.
A short time after the balloting had commenced, a mistake was made by a voter in casting both votes into the same box. The voter came forward and requested to vote again, he having deposited both of 1ns votes in the box for state officers. The selectmen decided that he could not vote again, nor could he take out the vote he had deposited. He said he understood his vote would not be counted, and therefore he demanded the privilege of taking out his vote or to vote again ; but he was not permitted to do either. Subsequently Mr. Church east a vote into the box held by Mr. Clark, which was the box for the votes for representative to congress; I noticed it from the size of the vote ; it was for state officers — the ballots for state officers being about four times as large as the votes for representative to congress. I called the attention of Mr. Church to the circumstance. I did not read the vote. When the poll was closed we commenced counting the votes for state officers, and the result of the vote for state officers was declared, before the sorting or counting of the votes for *494representative to congress. In sorting the votes for representative to congress, there was one ballot found among them bearing the names of the several officers for state officers. I do not swear that Mr. Church put in such a vote. I do not recollect that Mr. Church asked me to permit him to take out his vote. My impression is, that Mr. Church put both his votes into the same box — the one held by Mr. Clark. The tickets of both political parties were of about the same size.’
Mr. Whitwell subsequently amended his testimony by adding the following: ‘I, F. It. Whitwell, do further say, that a man, I think by the name of Lewis L. Bartlett, a schoolmaster in Fairhaven, early in the meeting on the 14th November, came up to the ballot-box held by me on that day, which was the box for state officers, and dropped into said box two votes, one large vote and one small one; he immediately discovered his mistake, and requested permission to take out his vote for representative to congress, stating that he had learned that the vote he had east would not be counted ; the selectmen told him he could not do it, and he did not do it.5
Cyrus E. Clark, called by the petitioners : — 41 am one of the selectmen of the town of Fairhaven. The town-meeting on the 14th November last was opened by reading the warrant; and before any votes were received, the selectmen stated to the meeting, that two boxes would be used for the reception of votes ; the boxes were labelled in large letters, one for governor, lieutenant-governor, and for state officers, and the other, representative to congress and electors. The box for state officers was on the left hand of the desk, and the box for United States officers on the right hand of the desk. And it was declared by the selectmen, that all votes put into the wrong box would be rejected ; and it was again repeated that the box for state officers was on the west end of the desk, and the box for United States officers was on the east end of the desk, and that all votes put into the wrong box would be rejected, and no person made any objection to the rule which the selectmen had so established and proclaimed to the meeting.
After the meeting had determined the number of representatives to be sent to the general court, the selectmen called upon the voters to bring in their ballots, stating, at the same time, that every voter must wait till his name could be found on the list and checked.
There was one person who, Mr. Whitwell said, had voted wrong; he mentioned the fact to the man ; he made no request in my hearing to have his vote changed.
After the poll was closed, we put the cover on the box for representative to congress, and took the box for state officers, sorted, counted and declared them, before we touched the other votes. We then sorted the votes for representative to congress ; we found one vote for state officers in the box for representative to congress ; that vote for state officers was not counted, but thrown out.’
Elbridge G. Morton, called by the petitioners : — ‘ I am one of the selectmen of Fair-haven, and my story would be only a repetition of what the other selectmen have stated.
I, however, think proper to describe the boxes used for the reception of ballots. The boxes were painted with a white ground and lettered with black letters, seven-eighths of an inch square, and were lettered as has been before stated.
The warrant was read, and the selectmen made the proclamation that has before been stated, that ballots found in the wrong box would not be counted, but would be thrown out.
Mr. Whitwell stood at my right, holding the box for state officers, and Mr. Clark for representative to congress ; my part of the duty was to ascertain the names of the *495citizen* as they approached to put in their votes* and to announce their names to those who had i barge of the cheek list; the names would be responded to by the persons holding the cheek list. Wore they weio permitted to put in their voles.
The proclamation was frequently repeated by the selectmen during the day, that votes would not be counted if the voters should make a mistake by putting their votes into the wrong box. I am not able to say that I saw any voter deposit his vote in the wrong box ; I do not recollect that Mr. Church claimed the privilege of changing his vote, and cannot swear that he did not.
i can swear, that in counting the votes for state officers, we found one vote for Barker Burnell for representative to congress,
At the opening of the meeting, no one expressed any dissatisfaction with the arrangement of the selectmen; which was, that no votes would be counted that were deposited in the wrong box.
After the votes for state officers had been counted and declared to the meeting, we proceeded to count the votes for representative to congress, and one vote for state officers was found among them, which was thrown out. I do not recollect that any objections were made at that time to the rejection of said vote. In the year 18-10, two boxes were used, and probably the same boxes used this year, labelled very conspicuously in front of the boxes.’
Mr. Caleb Church being called again by the petitioners, says : — £ I am certain that I asked to change my vote, and Mr. 'W’hitwell said I could not be permitted to do it. I do not recollect any declaration made by the selectmen of the rule which has been stated. I do not remember in which hand I held my ballots. I cannot swear, of rny own knowledge, that 1 put my votes into the wrong box, but I think I put votes into both boxes.’
It will be perceived, from the foregoing evidence, that it becomes important to determine whether the ballot, bearing on it the name of Barker Burnell for representative to congress, found by the selectmen in the ballot-box for state officers, was cast by Caleb Church, or by some other person. If cast by Mr. Church, he having sworn that he intended to vote for the candidates, who were voted for on that day to represent the town in the then next general court, in opposition to the sitting member, then it is most clear the said ballot should have been counted ; and in that case, the sitting member would not have been elected, provided the selectmen had established no vote to the contrary. But if the said ballot was cast by Lewis L. Bartlett, as testified to by Mr. Whitwell, in a maimer which left no doubt on the minds of the committee, that the said Bartlett cast two votes into the box for state officers.; then one of the votes cast by the said Bartlett should not have been counted, and the sitting member had a majority of all the votes cast, and was elected. Such is the opinion of the committee.. *496At the same time, they are not disposed to impeach, or in any way to call in question the credibility of Mr. Church, the first witness offered by the petitioners. It is not necessary to do so, in order to come to the result which the committee have arrived at; for it will be perceived by his testimony, that he swears to nothing positive, only from impressions; he does not even know that he made any mistake.
The rule established by the selectmen, and proclaimed again and again to the meeting during the day, that all ballots for state officers found in the box for United States officers, and all ballots for United States officers found in the box for state officers, would be rejected by them on counting said ballots, was, in the opinion of the committee, a salutary and indispensable rule; and not, as alleged in the petition, 1 an arbitrary, unjust and illegal rule;’ especially when the balloting for state and United States officers is proceeding at the same time. If such a rale can by any possibility be considered as arbitrary or unjust, it is too late to object after the balloting is finished, and the result declared.
In view of the whole evidence, the committee are of opinion that Jones Robinson, the sitting member from Fairhaven, was duly elected, and that the petitioners have leave to withdraw their petition.”
The house agreed to the report of the committee, and thereupon ordered, that the petitioners have leave to withdraw their petition.1
65 J. H. 302, 395. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502579/ | The house, on the 28th of January, having ordered; 2 “ That the practice that has obtained with the senate and house of representatives, when convened together for filling certain offices, of rejecting from the count ballots cast for ineligible candidates, be referred to the committee on elections, with instructions to *497consider and report whether such practice is in accordance with the constitution and laws the committee reported thereon as follows1:-
“ The practice alluded to by the order seems to have been of long standing. It is believed, however, that no case has arisen where an election by the two branches has turned upon the rejection of such votes, and the committee are apprehensive that the objections to the practice, therefore, have not been duly considered. Recent elections by the convention have shown, that it is quite possible for the title of senators to their seats to depend upon the fact, whether the practice is sound or unsound. It not being competent for the two branches, when assembled for certain elections, to go into any discussions or investigations, the committee think it desirable to have such a rule previously established, as will obviate the necessity of such discussion or investigation. And the committee beg leave to submit, that no votes should be rejected from the count simply on account of the ineligibility of the candidates voted for. The constitution undoubtedly places these, without distinction, amongst those votes, a majority of which, that instrument makes necessary to a good election. And why should they not stand upon the same footing in the count? It is a legal and proper mode of exercising the right of suffrage, if the voter choose it. It is a vote against all other candidates, eligible or ineligible. The difference between the two kinds of votes affects the candidates, not the voters. The ineligible candidate cannot avail himself of his election if he have a majority, the eligible candidate can. The constitution and laws, in the opinion of the committee, require that an election, to be good, should be sustained by more votes than are thrown for all other candidates. It is not necessary to go further and inquire into any disabilities of candidates. The house adheres to this principle, when acting as judge of the elections of its own members, and the committee believe that the principle is applied to all the elections in the state, éxcept those by the convention of the two branches. This principle *498is admitted and constantly acted upon in the congress of the United States, and an example may be found in the volume of ‘ Contested Elections in Congress,’ Washburn v. Ripley, page 681. The principle was first admitted and continued, more than half a century since, under very memorable circumstances. In 1769, John Wilkes, Esquire, was expelled the British house of commons, and declared incapable of holding a seat therein. At a subsequent election, John Wilkes, notwithstanding his incapacity, received 1143 votes, and another candidate received 296, The commons declared Luttrell duly elected, and that the Wilkes votes were nullities, because of the incapacity or ineligibility of the candidate. This decision, recorded by parliament, convulsed the whole kingdom for twelve years, when the decision was expunged from the journals ‘ as being subversive of the rights of the whole body of electors of that kingdom.’ The committee do not find that the principle has ever been questioned in England, since that settlement, nor do they find that it has ever been disregarded in this country, except in the instance of the two branches of our own legislature, when assembled together. But the committee think that the elections, which the two branches are required to make, are under the same authority as other elections held under the constitution, and they therefore ask leave to submit the following resolution.
Resolved, That it is not in accordance with the constitution and laws, for the two branches of the legislature, when determining elections, which they are required to make in convention, to reject from the count ballots cast for ineligible candidates.”
Two of the members of the committee, (Messrs. Russell and Thomas,) dissenting from the report, presented the following reasons for their dissent1:—
“ The fact, that the votes given for ineligible candidates, when the two houses have met in convention for the purpose of filling vacancies in certain offices, have been rejected from the count, is of long standing, and that no evil has resulted from such practise, is of itself a sufficient reason why a different rule *499should not now be established. It is time enough to provide a remedy, when an evil is found to exist, and not in anticipation of an evil. This, it is believed, is a safe course in all cases.
But the question submitted to the committee is, whether, under the circumstances above alluded to. it is in accordance with the constitution and laws to reject votes cast for ineligible candidates. The constitution and laws of this commonwealth requiring that, in order to make an election, the candidate voted for should have a majority of all the votes or ballots given in; it becomes important to determine what is a vote or ballot? A vote, as defined by Johnson, is a ‘a voice given and numbered;’ a ballot is ‘a little ball or ticket used in giving votes.’
Is a piece of paper bearing upon it the name of an imaginary being, (for it may as well be an imaginary being; as an ineligible candidate,) deposited in the ballot-box at any election, to be counted merely because it has upon it characters in the shape of letters? Is such a piece of paper any more a vote because it has a name upon it?
The practise of rejecting blank pieces of paper, although they may have the form and shape of the actual votes which are cast, is believed to be uniform everywhere. The reason for the rejection of such a piece of paper is, that it is not ‘a voice given and numbered that no one is designated who can be elected. It is, however, no less an expression of dissatisfaction to the candidates voted for by other persons on the one side or the other, than it would be if it bore the name of an imaginary being, or a person ineligible. In both cases it is not a vote, and should not so be treated.
So far as precedents can be found, the practise of rejecting from the count votes cast for ineligible candidates is not peculiar to the convention of the two houses in the Massachusetts legislature-'; it has obtained more or less in the house of representatives of the United States, and in the house of commons in Great Britain; though not always in either, or perhaps not even in a majority of cases. In short, the practise of counting or rejecting votes, cast under such circumstances, has not been *500uniform, either in the United States or in Great Britain, so that nothing can be determined from precedent.
As a general principle, that all votes cast at any election by legal voters must be counted, the undersigned readily admit that very little, if any, discretion should be left to the presiding officer or officers at any election in this particular; but when a mistake, such as casting two votes, is palpable and perfectly obvious, the discretion of rejecting one may with propriety be exercised, and, in the opinion of the undersigned, should be exercised.
If it has become important, that any rule should be established concerning the counting or rejecting from the count votes cast for ineligible candidates, not only in the convention of the two houses for filling vacancies in certain offices, but in all elections in the commonwealth, the undersigned are of opinion, that the safest and best rule would be to reject from the count such votes, precisely in the same manner as blank pieces of paper are now' in all cases rejected. For, if the elective franchise is worth possessing, it should be exercised with prudence, with discretion, and with judgment. It is too dear a privilege to be trifled with; it is too valuable to be made a subject of sport. Whenever, therefore, a voter shall be so lost to a sense of propriety and duty, as, through design or negligence, to cast his vote for ineligible candidates, he can have no reason to complain that his vote is not counted.
Inasmuch, therefore, as ‘no case has arisen where an election by the two houses has turned upon the rejection of votes cast for ineligible candidates,’ and the custom has obtained, for aught that appears, from time immemorial, to reject such votes, the undersigned take leave to submit, that the proposed resolution of the majority of the committee is uncalled for, and that no further action should be had on said order.”
The report of the committee was ordered to lie on the table.
Same, 134.
65 J. H. 321.
65 J. H. 403. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502581/ | The election of Erastus Richards, returned a member from Sharon, was controverted by Joel Potter and others, on the following grounds, namely, that at the election in that town, when the sitting member was chosen, three persons, neither of whom was lawfully entitled to vote, were permitted to vote, and did vote for the sitting member; that four persons, all of whom were lawfully entitled to vote, and would have voted against the sitting member, were not permitted to vote; and that had not the selectmen received the votes of the three persons who were not legally entitled to vote, and had they permitted either of the four persons to vote who were legally entitled to vote, the said Richards would not have had a majority of all the votes.
It appeared from the record of the meeting, that the whole number of ballots was two hundred and twenty-four, of which one hundred and thirteen were necessary to a choice ; and that Erastus Richards had one hundred and fourteen, and was declared to be elected.
The case being referred to the committee on elections, much evidence was given on both sides at the hearing, and reported at length by the committee; but being summed up in their report, it is not necessary to be here stated.
The petitioners also offered to prove, that “the time of opening the poll was not mentioned in the warrant, and that the poll was not kept open two hoursbut inasmuch as these allegations were not set forth in the petition, nor contained in the specifications, the committee were of opinion that they came too late, and could not now be considered.
The committee, upon the evidence in the case, came to the following conclusions:—
*503“ The petitioners having admitted, that, to make out a case, and to show that the sitting member from the town of Sharon was not entitled to a seat in the house of representatives, they must prove to the satisfaction of the house, that he received at least one vote from a person who was not a legal voter, and had no right to vote: and that three persons at least were not permitted to vote who had a legal right so to do; and also, that, had they been permitted to vote, they would have voted against the sitting member. In. weighing the evidence as to the first point, to wit: that one or more persons were permitted to vote who had no right to vote in that election, after an elaborate and able argument of the counsel who appeared for the petitioners, the committee had no difficulty in corning to the unanimous opinion, that both of the persons, whose right to vote in this election was called in question by the petitioners, were, to all intents and purposes, legal and constitutional voters. This being the opinion of the committee, the case of the petitioners fails, they not having attempted to show, that more than three persons were deprived of the privilege of voting, who had all the legal and constitutional qualifications of voters, and attempted to exercise that privilege by tendering their ballots on that occasion ; the sitting member having had four votes over all other candidates voted for: Had the three persons, who were not permitted to vote, voted on that occasion, in opposition to the sitting member, still he would have had a majority of all the votes polled, and would consequently have been entitled to his seat.
The committee might here stop, and forbear giving an opinion, which would have been a more liberal extension of the right to exercise the elective franchise, than has heretofore prevailed, were it not for the opinion of the justices of the supreme judicial court, as reported in the supplement to the eleventh volume of Pickering’s Reports.
But the committee, nevertheless, at the request of the parties in interest in this ease, are induced to offer an opinion as to the right which Jason Gay, Edmund French, and Joseph Cummings had to vote in the election of the 28th of November last.
*504It was admitted on all sides, that Jason Gay was over seventy years of age, and had no taxable property; he therefore ■was a legal voter.
Edmund French was more than seventy years of age, was in possession of an estate, which, from his own showing, yielded an income of eleven dollars per year, and would rent for ‘ a dozen or fifteen dollars more.’ Either one-half or one-third of said estate was his in right of his wife, during the life-time of bis wife, he having no children by her. This estate was not taxed by the assessors of the town, and had not been taxed for several years, and was omitted to be taxed, as testified to by the assessors, by reason of the age and poverty of the occupant; they not even taxing the non-resident owners of the other shares held in common with the said French.
This case comes clearly within the rule, laid down by the justices of the supreme judicial court, as above referred to; it also comes within the rule, as laid down in a report of a committee of the house, composed of the members of the committee on the judiciary and the committee on matters of probate and chancery, 1840, (ante, 413,) which was in substance, that, ¡ persons more than seventy years of age, having taxable property, which the assessors, in their discretion, exempt from taxation, by reason of age, infirmity, or poverty, are not entitled to vote in such elections.’
The committee, therefore, however reluctantly, are compelled to an opinion, that the said French was not a legal voter at the November election.
Joseph Cummings was also more than seventy years of age ; had not been taxed for several years ; about nineteen years ago, he gave a deed to his son of his real estate in said Sharon, and took a bond for a support through life ; the property was afterwards sold by his son, for 01500. He had no income, which could be taxed; he had a mere support, so that he should not be chargeable to the town. Having therefore no taxable property, and being more than seventy years of age, the said Cummings, in the opinion of the committee, was a legal voter at the election in November last.
*505The committee are of opinion, that the right of voting for state officers, under the constitution and laws, as they now exist in this commonwealth, is intended to depend on the payment of a poll-tax, and not on the payment of taxes on the estate of which a citizen may be possessed. This opinion is drawn from the fact, that no property qualification is required to constitute a voter. When, therefore, the law exempts a man from paying a poll-tax, whether it shall be at the age of seventy, sixty, or fifty years, from the time he shall be so exempted, lie has as much a receipt for his poll-tax, for every year after lie shall be so exempted, as though be had a receipt in his pocket;, from the collector, for a tax duly assessed (provided he is not a town pauper), and should therefore be permitted to exercise the right of voting, in all state elections, whenever he may choose so to do.
The committee, entertaining these views of the meaning of the constitution and laws, as to taxation, would have reported that the vote of Mr. French should have been received: but, inasmuch as they cannot do so, without acting against the opinion of the justices of the supreme judicial court, before referred to, they report that the vote of Mr. French was properly excluded.
In view of the whole matter, the committee are of opinion, that Erastus Richards, the sitting member from the town of Sharon, was duly and legally elected, and therefore that the petitioners have leave to withdraw their petition.”
The house agreed to the report, and the petitioners accordingly had leave to withdraw.1
65 J. H. 280, 288, 366, 386. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502646/ | Journal Entries: [None]
Papers in File (1820): (1) Precipe for capias; (2) capias and return.
File No..... Lamed Locket, MS p. 28. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502582/ | The election of Eli Moody, returned a member from this town, was controverted by William Barton, on the ground, that at the balloting when the election took place, the check list was not used.
The case being referred to the committee on elections, it was in evidence before them, by the testimony of one of the selectmen, that at the second balloting for a representative, when a choice was declared, the names of the voters were none of them checked, as they voted, either by the witness, or by the other selectmen, none of them supposing it to be necessary.
It was also in evidence, by the affidavits of all the selectmen, that at the election in question, at which they presided, on the first balloting for representative, the selectmen called the names of all the legal voters, and checked all who came forward to vote ; that at the second balloting, the selectmen all stood by the ballot-box, with the check list before them, and with their eyes on the voters as they came up to vote; that they personally knew every man whose name was on the check list, and if any man had come forward to vote, whose name was not on the check list, they should have detected him at once; that they were confident that no person voted at the second balloting, whose name was not on the check list, and who had not been called; that there could be no question, but that the member returned was fairly elected at the second balloting, by a majority of the votes then cast; that from their knowledge of the persons of the voters, and from the position of the affiants when the votes were given, no person could have voted more than once at the second balloting, without being detect-*507eel by the selectmen; that they were confident that, in fact, no person did vote more than once at said second balloting; and that they had never heard any suspicion expressed, by any person whatever, that the member elected had not a majority of the votes, or that any votes had been cast at that election by persons not legally qualified.
The committee reported against the validity of the election, and the house thereupon declared the seat vacant, allowing the member pay up to that time.1
65 J. H. 367, 381. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502583/ | The only ground, on which the election of the member returned from Spencer was controverted, was that the poll was not kept open two hours; and, in reference to this point, it appeared from the testimony of the sitting member, who was sworn and testified in the case, at his own request, and to save trouble to the petitioners, that he was present at the meeting, but did not know at what time the voting commenced, or when it terminated ; that after the selectmen had announced that the poll was closed for the choice of representative, and had begun to count the votes, immediately persons came in, and expressed great surprise that; the poll was closed, and some one standing by said, that the poll had not been kept open two hours. The, selectmen, after a little conversation between themselves, stated that they had no means of knowing how long the poll had been open. Inquiry was made of the bystanders, as to the time, but no one had any means of knowing. An impression prevailed, that the poll had not been kept open two hours. The selectmen then put tfie question to the voters, whether the two persons claiming the right *508to vote should be allowed to do so, and it was declared to be a vote that they should, and thereupon, the box was presented to them and their votes were received.
The sitting member had a majority of eleven votes. The two persons who voted last were whigs, but whether they voted for the sitting member or not, he does not know. They were desirous to vote for governor. After the two persons who last voted had done so, the selectmen then said, “ Are you now satisfied, that we have kept the poll open two hours ?” and they all said “ yes.” The time that elapsed from the first closing of the poll, to the second closing of the poll, was ten or fifteen minutes.
The committee thereupon notified the petitioners, that they would be heard further if they desired, but the petitioners declined further action : and the committee reported, that they have leave to withdraw-: — -which report was agreed to.1
65 J. H. 376, 386. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502584/ | In this case, the petitioners set forth as the grounds of their case:—
“ First, because no meeting of the inhabitants was called on the second Monday of November, as is provided in the constitution : and
Second, because, the meeting, at which the member returned was elected, was held on the fourth Monday of November and was the first meeting for that purpose.”
The committee, on inspecting the evidence offered to them, found, that from some reason, in the warrant calling the meeting of the fourteenth of November, no mention was made of *509the choice of representative, the subject being wholly omitted. There was no evidence produced to invalidate the proceedings of the twenty-eighth, at which time, there was an election of the sitting member as appears by his certificate.
The committee reported, that the petitioners have leave to withdraw : — and this report was agreed to,1
65 J. H. 165, 228. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502585/ | “ To the honorable the house of representatives of the commonwealth of Massachusetts:
The undersigned, justices of the supreme judicial court, have taken into consideration the question upon which their opinion wras requested by the honorable house, by their order of the 10th of March instant, in the words following:—
! Is a residence at a public institution, in any town in this commonwealth, for the sole purpose of obtaining an education, a residence within the meaning of the constitution, which gives a person, who has his means of support from another place, either within or without this commonwealth, a right to vote, or subjects him to the liability to pay taxes in such town?’
And in answer thereto, we respectfully submit the following opinion:—
We feel considerable difficulty in giving a simple or direct answer to the question proposed, because neither of the circumstances stated constitutes a test of a person’s right to vote, or liability to be taxed; nor are they very decisive circumstances bearing upon the question. On the contrary, a person may, in our opinion, reside at a public institution for the sole purpose of obtaining an education, and may have his means of support from another place, and yet he will, or will not, have a right to vote in the town where such institution is established, according to circumstances not stated in the case on which the question is proposed.
By the constitution it is declared, that, to remove all doubts concerning the meaning of the word ‘ inhabitant,’ every person shall be considered an inhabitant, for the purpose of electing *511and being elected into any office or place within this state, in that town, district, or plantation, where he dwelleth, or hath his home.
In the third article to the amendments to the constitution, made by the convention of 1820, the qualification of inhabitan-cy is somewhat differently expressed. The right of voting is conferred on the citizen who has resided within this commonwealth, and who has resided within the town or district, &c.
TVe consider these descriptions, though differing in terms, as identical in meaning, and that ‘inhabitant,’ mentioned in the original constitution, and ‘ one who has resided,’ as expressed in the amendment, designate the same person. And both of these expressions, as used in the constitution and amendment, are equivalent to the familiar term domicil, and therefore the right of voting is confined to the place where one has his domicil, his home or place of abode.
The question, therefore, whether one residing at a place where there is a public literary institution, for the purposes of education, and who is in other respects qualified by the constitution to vote, has a right to vote there, will depend on the question whether he has a domicil there. His residence will not give him a right to vote there, if he has a domicil elsewhere ; nor will his connection with a public institution, solely for the purposes of education, preclude him from so voting, being* otherwise qualified, if his domicil is there.
The question, what place is any person’s domicil, or place of abode, is a question of fact. It is in most cases easily determined by a few decisive facts ; but cases may be readily conceived, where the circumstances tending to fix the domicil are so nearly balanced, that a slight circumstance will turn the scale. In some cases, where the facts show a more or less frequent or continued residence in two places, either of which would be conclusively considered the person’s place of domicil, but for the circumstances attending the other, the intent of the party, to consider the one or the other his domicil, will determine it. One rule is, that the fact and intent must concur. Certain maxims on this subject we consider to be well settled, *512which afford some aid in ascertaining one’s domicil These are, that every person has a domicil somewhere ; and no person can have more than one domicil at the same time, for one and the same purpose. It follows, from these maxims, that a man retains his domicil of origin till he changes it, by acquiring another; and so each successive domicil continues, until changed by acquiring another. And it is equally obvious, that the acquisition of a new domicil docs, at the same instant, terminate, the preceding one.
In applying these rules to the proposed question, we take it for granted, that it was intended to apply to a case, where the student has his domicil of origin, at a place other than the town where the institution is situated. In that case, we are of opinion that his going to a public institution, and residing there solely for the purpose of education, would not, of itself, give him a right to vote there, because it would not necessarily change his domicil; but in such case, his right to vote at that place would depend upon all the circumstances connected with such residence. If he has a father living : if he still remains a member of his fathers family: if he returns to pass his vacations; if he is maintained and supported by his father; these are strong circumstances, repelling the presumption of a change of domicil. So, if he has no father living; if he has a dwelling-house of his own, or real estate, of which he retains the occupation ; if he has a mother or other connections, with whom he has before been accustomed to reside, and to whose family he returns in vacations; if he describes himself as of such place, and otherwise manifests his intent to continue his domicil there; these are all circumstances tending to prove that his domicil is not changed.
But if, having a father or mother, they should remove to the town where the college is situated, and he should still remain a member of the family of the parent; or if, having no parent, or being separated from his father’s family, not being maintained or supported by him; or, if he has a family of his own, and removes with them to such town ; or by purchase or lease takes up his permanent abode there, without intending to return to *513his former domicil; if he depends on his own property,income or industry for his support; — these are circumstances, more or less conclusive, to show a change of domicil, and the acquisition of a domicil in the town where the college is situated. In general, it may be said that an intent to change one’s domicil and place of abode is not so readily presumed from a residence at a public institution for the purposes of education, for a given length of time, as it would be from alike removal from one town to another, and residing there for the ordinary purposes of life; and therefore stronger facts and circumstances must concur to establish the proof of change of domicil, in the one case than in the other. But where the proofs of change of domicil, drawn from the various sources already indicated, are such as to overcome the presumption of the continuance of the prior domicil, such preponderance of proof, concurring with an actual residence of the student in the town where the public institution is situated, will be sufficient to establish his domicil, and give him a right to vote in that town, with other municipal rights and privileges. And as liability to taxation for personal property depends on domicil, he will also be subject to taxation for his poll and general personal property, and to all other municipal duties, in the same town. x
For the information of the honorable house, we respectfully refer to several decided cases, bearing upon this subject: Amherst v. Granby, 7 Mass. 1; Putnam v. Johnson, 10 Mass. 488; Harvard College v. Gore, 5 Pick. 370; Lyman v. Fiske, 17 Pick. 231; Abington v. North Bridgewater, 23 Pick. 170.
The question submitted supposes the case of a person residing at a public institution for the purpose of education, ‘ who has his means of support from another place, either within or without this commonwealth.’
We do not consider this circumstance of much importance in determining the domicil. If, indeed, a young man, over twenty-one years of age, is still supported by his father or mother, it is a circumstance concurring with other proofs to show that he is still a member of the family of such parent, and so may bear on the question of domicil. But if he is *514emancipated from his father’s family, and independent in his means of support, it is immaterial from what place his means of support are derived. If it be income from rents of real estate leased in another town, or dividends from the stock of a bank there situated, or interest of money invested on mortgage in such town, it seems to us, that this circumstance would have no influence in deciding the question of domicil, and the consequent right to vote in any town.
LEMUEL SHAW, S. S. WILDE, CHARLES A. DEWEY, SAMUEL HUBBARD.
Boston, March 15, 1843.” | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502587/ | Myrtle McGee and thirteen other voters of Coleraine petitioned against the election of Arad Towne, the member returned from Coleraine, on the ground, that the warrant calling the meeting, at which he was elected, did not state the time at which the poll was to be opened.
The petition was presented and referred to the committee on elections, on the 17th of January.3 With the papers is filed a copy of the warrant and return, certified by the town clerk, in which there is no allusion to the time of opening the poll.
On the 24th of January, the committee reported,4 that they had considered the subject, and that the petitioners should have leave to withdraw their petition, and on the 25th this report was agreed to.5
Same, 90.
Same, 124.
Same, 135. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502588/ | The election of Freeman F. Tilden, Richard Frothingham, Jr., Abraham Rand, and Philip B, Holmes,'members returned from the town of Charlestown, was controverted by Henry P. Fairbanks and 270 others, voters of that town, on certain grounds stated in their petition ; in reference to which, the committee on elections, to whom the case was referred,1 reported as follows2 :—
“ The facts in the case are these: A meeting was held on the second Monday of November last, for the purpose of choosing representatives ; the poll was opened at 9, A. M., and closed at 4, P. M.; 1532 votes were cast; necessary for a choice, 767; said Tilden received 712 ; said Frothingham received 689; said Rand received 229 ; and said Holmes received 761. After the above vote had been declared, the meeting was dissolved.
Notice was then given that a second meeting would be held on the 27th of November last, at 12 o’clock, M.
This meeting was called to order and the warrant was read, when a motion was made to dissolve the meeting, which was voted in the affirmative, 78 to 63. The vote was doubted, and the motion was again put, and the result was declared, 160 votes in favor of and 88 votes against dissolving the meeting; which last vote was also doubted by eleven persons, and to make the vote certain, it was taken by counting the voters for and against dissolving the meeting, as they passed the presiding officer; the result of which was, 335 votes in favor of, and *519358 votes against, dissolving the meeting. The poll was then opened, and kept open until 7 o’clock, P. M. The whole number of ballots cast was 1501; necessary for a choice, 751; said Tilden received 716; said Frothingham received 705; said Rand received 711; and said Holmes received 722 votes.
After the result of the last balloting had been declared, at 15 minutes of 8 o’clock, P. M., it was voted to proceed to another ballot for the choice of four representatives. The poll was forthwith opened, and kept open for the space of two hours, by a vote of the town. The whole number of votes cast at this balloting was 1060 ; necessary for a choice, 531: said Tilden received 569; said Frbthingham received 567; said Rand received 567, and said Holmes received 573 votes.
The circumstances, relied upon by the petitioners to prove that the meeting was dissolved, are, that the vote was taken and declared in the affirmative, and was immediately doubted, but no one called for the polling of the house, or a division of the meeting. The chairman, to settle the doubt, counted the hands, and again stated the vote to be in the affirmative. And it is contended, that by this last act, the meeting consented to this mode of settling the doubt, and that afterwards no one had a right to call for a polling of the house. The committee are of the opinion, that there was nothing in this proceeding which should render the election void.
As to the matter of voting without the check list being used, it was given in evidence by several witnesses, that some twenty or thirty persons, whose names had not been checked, cast pieces of paper, apparently votes, into the box. It was not given in evidence, who either of the persons so voting were, or that any person voted more than once, at the same election. Several of the selectmen, and the constables on the other side, were as sure that no pieces of paper or votes were cast into the box, until the names of the voters had been checked. The committee are of the opinion, that the petitioners have not made out this point of their case.
The third allegation, which the committee think proper to notice, is one of general irregularity on the part of the meeting.
*520A motion was made to dissolve the meeting, after the result of the balloting, which terminated at 7 o’clock, had been declared, which created a great deal of disturbance. The meeting became disorderly in the extreme, and scenes were acted, under cover of the night, which the persons engaged in them would have been ashamed to have been engaged in, in the day time. But the committee are of opinion, that however reprehensible the conduct of a portion of the citizens might have been in this respect, yet as there was no irregularity in the voting, the seats of the sitting members for this cause should not be declared vacated.
The committee now come to the fourth, and, in the opinion of a majority of them, to the only reason why the seats of the sitting members should be declared vacated, which is, that at the ballot by which the sitting members claim to have been elected, (a previous one held on the same day having resulted in no choice,) the poll was not only continued open after sunset, but was opened, and the whole proceedings were had, after that time, contrary to the provisions of the third section of the forty-second chapter of the act passed March 9,1839.
The second section of said act provides, that 1 The warrant for notifying any such meeting shall specify the time or times when the poll for the choice of the several officers shall be opened; and the same shall be kept open at least two hours, and for such longer time as a majority of the voters present shall by vote direct; but the poll at all such elections shall be closed by sunset of the same day.’
The third section provides, that! When a town, having a right to choose, and voting to choose, more than one representative to the general court, shall elect to choose them separately, the provisions contained in the preceding section, prescribing the time of opening and closing the poll, shall apply only to the choice of the first representative thus chosen ; and in any case of balloting for a representative to the general court, if no person is elected on the first ballot, the said provisions shall not apply to any subsequent balloting for such representative on the same day; provided that the poll shall be closed by sunset.’
*521By the act of 1843, c. 94, passed March 24th, 1843, so much of the second section of the act concerning elections, approved on the 9th day of March, 1839, as provides for closing the polls at sunset on days of election, was thereby repealed.
Just before the balloting commenced, at which the sitting members claim to have been elected, the petitioners called the attention of the meeting to the provisions above recited, by causing the presiding officer to read them to the meeting ; and remonstrated against the right of the town to open the poll and proceed to an election after sunset; but the motion to proceed to a ballot for representatives prevailed, and the petitioners, for the most part, left the meeting, and did not vote at said balloting.
A majority of the committee are of the opinion, that the act of 1843, c. 94, does not repeal the third section of the 42d chapter of the acts of 1839, but that the third section of chapter 42, passed 1839, stands now precisely the same as if the act repealing the second section of the act of 1839, chapter 42, had not been passed.
The committee therefore recommend the 'adoption of the following order:—
Ordered, That the seats of Freeman F.' Tilden, Richard’ Frothingham, Jr., Absalom Rand, and Philip B. Holmes, returned as members from the town of Charlestown, be, and hereby axe, declared vacant.”
This report was presented to the house1 on the 30th of January ; was agreed to on the 6th of February,2 by 165 yeas to 125 nays ; and the committee on the pay roll directed to make up the pay of the members including that day.3
On the 9th of February, a motion that a precept should issue, for a new election in Charlestown, was made and decided in the negative.4
66 J. H. 51.
Same, 160.
66 J. H. 160.
Same, 186, 190.
Same, 196,
Same, 214. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502589/ | Jabez Clark, of Russell, petitioned against the election of Jeremiah W. Bishop, the member returned from that town, on the following grounds :—
First. That at the sixth balloting, on the second Monday of November, one Bradford W. Palmer received a majority of all the votes cast for a representative, and thereupon the selectmen declared him ineligible to the office, and the meeting isras adjourned to the next day, when Mr. Bishop was elected upon the second balloting.
Second. That upon such second day the poll was not kept open more than an hour for both ballotings.
The petition was presented and referred to the committee on elections, on the 23d day of January.1 On the 7th of February, the committee reported,2 that they had notified the petitioners of the time appointed for hearing them, but although that time had long elapsed, no evidence had been offered against the member, and therefore that the petitioners should have leave to withdraw their petition.
There is filed, with the papers in the ease, what purports to be a certified copy of the record of the two meetings, containing a statement of the result of each balloting on the two days above-mentioned; and the town clerk also certifies, at the foot of the petition, that the statement of the votes contained therein is correct, and according to the record, and that the poll was open but about an hour for both ballotings.
The report of the committee was agreed to on the 13th of February.3
66 J. H. 115.
Same 210.
Same, 248, 249. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502590/ | The petition in this case, (referred to the committee on elections, February 10th,) was very brief, and is substantially copied in the following report,1 made on the 17th of February :—
“ The committee on elections, to whom was referred2 the petition of William E. Boyden and sixty others, citizens of Sandwich, against the right of Benjamin Bourne and Asahel Cobb, the sitting members from that town, to seats in this house, submit the following report: — -The ground, upon which the petitioners in this case ask that the seats of the sitting members may be vacated, is, that ‘ they were chosen after sunset on the day of election, and of consequence, in violation of the law of the commonwealth.’
Soon after this petition was referred to them, the committee gave notice to the member who presented it, of their readiness to hear the parties, and on Thursday last, Mr. Joseph Nye, one of the petitioners, and acting in their behalf, appeared before the committee. On that day, also, notice of the intention of the committee to proceed to a hearing was given to Mr. Bourne, one of the sitting members. No notice was given to Mr. Cobb, for reasons that will appear hereafter. Mr. Bourne was present before the committee.
It will be seen, that the petition'simply states, that the sitting members ‘were chosen after sunset, in violation of the law,’ without setting forth whether the election was upon a first or a second balloting. As the third section of the law of 1839, concerning elections, in the provisions touching this elee*524tion, relates only to the second and subsequent ballotings, the petition upon its face would not state a case for unseating these members, were it not for the general allegation that they were chosen 1 in violation of law’ Under this specification, the petitioners introduced as a witness the said Joseph Nye, and by his testimony it appeared, that the meeting for the choice of representatives to the general court, and for the purposes of the general election in the commonwealth, was holden in Sandwich on the thirteenth day of November last; that one unsuccessful balloting for said representatives was had, the sitting members then wanting some twenty or more votes of an election ; that a second balloting was then had, at which these members had a small majority of the votes cast; that in this second balloting the poll was opened just after sunset, and kept open nearly two hours, being closed between seven and eight o’clock in the evening; and thus that all the balloting was after sunset.
Mr. Bourne offered no evidence to the committee. He, however, asked for delay to send to Sandwich. But as he did not state what additional fact he would thus prove, or what statement of this witness, excepting that the polls were opened as well as kept open after sunset, he would disprove, the committee, not deeming this exception material, did not grant the request. Mr. Bourne neither admitted nor denied that the poll was kept open after sunset, leaving the petitioners to prove their case.
It also appeared that Mr. Cobb, the other sitting member, has been for some time dangerously sick, confined to his room and bed, and wholly unable to attend to any business. It has not therefore been thought proper by his friends and attendants, to mention the subject of this petition to him, and he is not aware, as your committee are informed, that any such petition has been presented. Mr. Bourne expressed a strong desire, that no action should be had until Mr. Cobb could be apprised of it, and expressed a hope that he could converse with him on the subject on that or the next day. The committee unanimously decided to postpone further proceedings *525till Friday afternoon. Mr. Bourne and Mr. Nye then again appeared, and it was ascertained that the friends of Mr. Cobb did not deem it prudent to name the subject to him, although he was then somewhat better. It was hoped by them, that he might be able next week to attend to this matter, though there is little prospect that he will be able to appear before the committee or in the house during the session.
Under these circumstances the committee were embarrassed, as to the proper course to be pursued. On the one hand, they did not wish to decide upon a matter of so grave importance, without a full hearing of the party interested. On the other, they were impressed with the necessity of deciding cases like this at the earliest possible time, consistent with a due regard to the rights of all concerned. In view of this latter consideration, they have determined to submit their report to the house, without delay on Mr. Cobb’s account; stating the fact that he has not been either personally present or represented before them.
So far as there is any evidence before the committee, it appears that both the sitting members were elected upon one and a second balloting, a previous one having resulted in no choice; that at this balloting the poll was kept open after sunset, in contravention of the provisions of the third section of the act of 1839, c. 42, entitled ‘ an act concerning elections.’ Upon this ground, therefore, they submit the following order:
Ordered, That the seats of Benjamin Bourne and Asahel Cobb, the sitting members of this house from the town of Sandwich, be, and they hereby are, declared vacant.”
The foregoing report was agreed to, and the seats of those gentlemen declared vacant, on the 21st of February, by yeas, 153, nays, 1294
On the succeeding day, the pay of Messrs. Bourne and Cobb was ordered to be made up to and including that day.2
An additional allowance of one hundred dollars was after-wards made to Mr. Cobb, in consideration of the expenses of his sickness, by the resolve of 1844, c. 71.3
66 J. H. 289.
Same, 223.
66 J. H. 315.
Same, 316, 319.
Same, 322. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502591/ | William Waterman and twenty others, voters of Williams-town, petitioned against- the right of Amasa Shattuck, the member returned from that town, to a seat in the house, on the ground, that the balloting, at which he was elected, had been commenced and concluded after sunset on the day of election, and after the selectmen of the town had given notice, that the poll would be open on the next day for the reception of votes for a representati ve.
With the papers in the case is filed, what purports to be a certificate of the selectmen and clerk of the town, dated February 9th, in support of the allegations contained in the petition.
The petition was presented and referred to the committee on elections, on the 13th of February.1 On the 29th of that month, the committee reported, that they had notified the petitioners of the time appointed for the hearing of the case, and that although that time had passed, no evidence on the subject, had. been offered. The committee thereupon recommended, that leave to withdraw should be granted to the petitioners; and this report was agreed to2 on the same day.
66 J. H. 248.
Same, 365. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502595/ | On the second day of March, 1844, the committee on the judiciary reported1 to the house, upon an order of the 23d of January,2 that the question upon which the following opinion is given, and which is stated in the opinion, should be proposed to the justices of the supreme judicial court, and this report was agreed to3 on the 4th of March. On the 12th of March the opinion was received,4 and ordered to be printed.
“ The undersigned, justices of the supreme judicial court, have received the order of the honorable house, passed on the second of March, eighteen hundred and forty-four, requesting their opinion upon the following question
‘ Is a person, who has the requisite qualifications as to residence, but who has been exempted from taxation on account of his poverty two successive years before his arrival at the age of severity years, entitled to vote in the election of governor, lieutenant-governor, senators and representatives, after his arrival at that age V
In answer to this question, we cheerfully submit the following opinion.
A just answer to the question must depend upon a true construction of the third article of the amendments to the constitution of the commonwealth, and the laws, to which that article refers, in order to determine the qualifications of voters. This article extends the right of voting, in the elections mentioned, to every male citizen of twenty-one years of age and upwards, excepting paupers and persons under guardianship, having certain qualifications of residence, and who shall have *536paid by himself, or his parent, master or guardian, any state or county tax assessed upon him within two years preceding, in any town or district of the commonwealth; and also to every person, who being otherwise qualified, shall be by law exempted from taxation. This provision of the constitution, being irrepealable by any act of ordinary legislation, must be obeyed and carried into effect according to its plain intent and meaning, as far as that can be ascertained. One of these requisites, to qualify the citizen to vote, is, that he shall have paid some state or county tax assessed upon him within the state, within two years preceding the election, or be by law exempted from taxation. In requiring the payment of a tax, the constitution makes no distinction between a poll-tax and a tax on the person in respect to his real or personal estate.
The question supposes the case of a person, who, for two years before arriving at the age of seventy years, has been wholly exempted from taxation on account of his poverty. It follows, that until he shall be taxed for property, he cannot have paid any tax assessed on him within two years, previous to the election, at which he may claim a right to vote, and cannot therefore establish his right upon that branch of the provision. The only question therefore, is, whether he Is a person exempted by law from taxation, within the other clause in this article of the constitution.
In reference to this question, we ask leave to refer to an opinion, given by the justices of the supreme judicial court, in February, eighteen hundred and thirty-two, signed by two of the subscribers, and in which the undersigned all concur. This opinion will be found in 11 Pickering’s Reports, 538, (ante, 285,) and we think it goes far towards deciding the present case. The opinion then expressed wTas, that persons exempted under the discretionary authority of the assessors, as persons who by reason of age, infirmity or poverty, are unable to contribute towards the public charges, are not persons exempted by law from taxation, within the meaning of this clause in the constitution. We then considered, and still consider, for the reasons there stated more at length, that the constitution had reference *537to a class of persons acting in capacities beneficial to the community, such as ministers of the gospel, instructors in public seminaries, and the like, persons to whom such exemption had been granted by law, as one mode of making up their compensation for services. And although this class of persons exempted by law- has been diminished by succeeding legislation, it does not alter the meaning of the constitution in this respect. Looking therefore to the probable purpose and intent of the makers of the constitution, and the terms in which they have expressed their intent; we are of opinion, that the persons who are annually and temporarily exempted by the assessors from taxation, by reason of their poverty and inability to contribute to the public revenue, are not persons exempted by law from taxation, who are entitled to vote without payment of any tax.
These considerations apply to all persons of whatever age, who are by the discretionary power of the assessors, excused from taxation on account of infirmity, or poverty. But the specific question is, whether persons of seventy .years of age and over, who have paid no tax assessed on them within two years before, because they have been exempted on account of age, infirmity, or poverty, can exercise the right of voting. No difference in this respect exists between persons of seventy years old and upwards, and those under that age, except that by the law as it now stands, persons of seventy and upwards are not liable to be taxed for their polls. In this respect some change has been made in the law, since the opinion was expressed in eighteen hundred and thirty-two. Before that time, the subject was usually regulated by the annual tax act, and the specific provision therein referred to was contained in the then last tax act, Stat. 1831, c. 151, by which all male citizens of sixteen years old and upwards were liable to a poll-tax. In one other particular, the law has undergone a slight change of form. As the law formerly stood, the provision that if there were any persons, who, by reason of age, infirmity, or poverty, might be unable to contribute towards the public charges, in the judgment of the assessors, they might exempt the polls and estates of such persons, or abate any part of what they *538were assessed, was usually embraced in the tax act: but now by the Revised Statutes, e. 7, § 5, 8th clause, the provision is made part of the permanent law regulating taxation. The reason probably is, that formerly it was usual to have a state tax annually, in which these clauses were introduced, and the general law in respect to town and county taxes directed, that assessors should conform to the then last state tax-act, in assessing county and town taxes. But in eighteen hundred and thirty-five, when the Revised Statutes were prepared, a state tax had become more unfrequent, and it became therefore convenient that the general provisions, in regard to town and county taxes, should be embraced in the body of the laws, to be made complete, and furnished to the officers and people of the commonwealth, instead of referring to tax-acts, which might be passed, if at all, at long intervals only. But the power thus humanely given to assessors to exempt individual persons, unable by reason of poverty to contribute to the public charges, was of precisely the same nature and extent then as now, and the law was similar in effect, and substantially so in terms ; and we think therefore that this exemption is still a temporary indulgence and excuse from the payment of taxes, allowed at the discretion of assessors, and that the persons thus excused are not persons exempted by law from taxation.
And we are also of opinion, that the modification of the law, determining what persons shall be liable to a poll-tax, can make no difference in respect to the right of voting. Formerly, all persons of sixteen years old and upwards, were taxable for their polls. By the Revised Statutes, it was reduced and limited to persons from sixteen to seventy years old, and by the statute of 1843, c. 87, it was again reduced to persons from twenty to seventy.
But whilst persons of all ages are liable generally to taxation for property, those over seventy cannot be said to be exempted by law from taxation, merely because they are no longer liable for a poll-tax. It is the liability to taxation, not the want of taxable property, which distinguishes citizens generally from citizens exempted by law from taxation. The *539exemption by law contemplated by the constitution is an exemption from all taxation, without any distinction between a poll-tax and any other tax. Persons over seventy, therefore, although not liable to a poll-tax, because the law does not make their polls taxable, are still liable in common with others to all other taxes ; and if not actually taxed in any one year, it is because they happen to have no taxable property. Such want of taxable property may be temporary or casual, and such persons may at any time acquire property, by inheritance or otherwise, and would then be taxable, and so they are not exempted bylaw from taxation. Upon any other construction, if the legislature were still further to limit the number of persons liable to a poll-tax, and if all such persons, not happening to have taxable property, and so not being assessed in fact for any tax, should be permitted to vote, it would, in our opinion, be repugnant to the constitution, which requires either the actual payment of a tax, or that the person shall be of some class having a general exemption by law from taxation. Suppose the legislature should, for some good reason, enact that persons between thirty and seventy, and no others, should be taxed for polls; there would be a class of persons between twenty-one and thirty, who would be entitled by age and residence to vote, and in regard to whom it could not be pretended that they were exempted by law from taxation. Their right to vote, then, by the plain and express terms of the constitution, would depend upon the payment of some tax, and there being no poll-tax, it must of course be the payment of a tax on property. So if the legislature were to take off the poll-tax altogether, it could not be said that all persons having, at any particular time, no taxable property, would be exempted by law from taxation ; therefore, to come within the other provision of the constitution, they must actually pay a tax to enable them to vote, and such, in the absence of all poll-taxes, must be a property tax. We are, therefore, of opinion, that persons over seventy years of age are no more entitled, on that account, than any other persons, to vote, without the actual payment of a tax, although on account of the change of the *540law they are not liable to a poll-tax. And it makes no difference that such persons have, dining the two years before arriving at seventy, or before or after that time, been exempted by the discretionary power of the assessors, on account of poverty, from being assessed or charged with the payment of any tax. All such persons may acquire property by inheritance or otherwise, and being always liable by law to taxation, may, in respect to such acquired property, be actually taxed. But as the constitution expressly requires, that, in order to be qualified to vote, a person must actually have paid a tax, or be exempted by law from taxation, we are of opinion, that persons seventy years old, though not liable to be taxed for their polls, are not thereby exempted by law from taxation, and therefore that they are not entitled to vote without the actual payment of some other tax.
LEMUEL SHAW, S. S. WILDE, CHARLES A. DEWEY, SAMUEL HUBBARD.
Boston, March 9, 1844.”
68 J. H. 384.
Same, 144.
Same, 402.
Same, 460. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502597/ | No member having been returned from the town, of Belling-ham, James M. Freeman, who claimed to have received a majority of the votes east therein for a representative at the annual *544meeting, petitioned1 the house on the 7th of January, 1846, that he might be admitted to a seat, and his petition was on the next day referred2 to the committee on elections. Two counter petitions against this supposed election, couched in the same language, and signed, the one by Charles W. Tingley and twenty-five others, and the other by Nahum Cook and thirty others, were subsequently presented and referred3 to the same committee, who, on the 27th of January, made their report,4 which was ordered to be printed. The report sets forth the allegations of the parties, on the one side and on the other, as follows :—
“ The petitioner claims a right to a seat on the following grounds: — •
1. Because, at the election duly held on the 10th of November last, the poll having been opened and closed according to law, the votes were counted and declared as follows : — whole number 163, necessary for a choice 82, and that James M. Freeman had that number and was chosen. It was immediately suggested that a vote for James J. Fiske had been overlooked. Search was made, and in one of the piles such a vote was found, and without again counting all the votes, this was added to the 163, making 164, and it required 83 for a choice, and the selectmen directed the clerk to make up his record accordingly, making no choice.
2. That the meeting was adjourned to the next day, and after three unsuccessful ballotings the meeting was dissolved.
3. Because it has since been ascertained, that two illegal votes were thrown against James M. Freeman, to wit, by John Jackson, an unnaturalized foreigner, and Martin G. Cushman, a minor.
The petitioners against the election controvert the right of Freeman to a seat for the following reasons:—
1. Because the warrant calling the meeting at which said Freeman claims to have been chosen, stated no time when the polls would be open, as required by the act concerning elec*545tions, passed March 9th, 1839, and the proceedings under said warrant are, therefore, void.
2. Said Freeman had not a majority of the votes cast at the meeting.
3. The meeting was adjourned to the next day, and said Freeman was a candidate at the adjourned meeting, and thereby waived all claims to a choice on the first day, and cannot now go back to the first meeting.
At the hearing before the committee, other objections not stated in the counter petitions were offered against the petitioner’s right to a seat. In the case of Erastus Richards, member from Sharon, whose election was controverted in 1843, (ante, 502,) it was determined that ‘ allegations not set forth in the petition, nor contained in specifications, came too late, and could not be considered.’ The committee, however, in the case now before them, have been willing to consider any additional objections offered by the petitioners, among which are the following :—
1. That in the warrant for calling the meeting for the 10th of November, it was not stated, that the question would be put whether the town would send a representative.
2. That the town did not vote to close the poll, and it does not appear that the poll was closed, before the meeting was closed.
3. That Paul Chilson gave a vote for Nahum Cooke, which was not counted by the selectmen.”
The committee then submitted a statement of the evidence in the case, from which it appeared, that the allegations of the parties were substantially proved thereby. The only portion of the evidence, which it seems necessary to state, is that of Stephen Lewett, one of the selectmen, which was as follows:
u I am one of the selectmen of Bellingham, and presided as chairman of the selectmen during the meeting of the 10th of November. No vote was passed by the meeting to send a representative. After the poll was closed, the votes were sorted; the town clerk stood at my side, and when they were sorting, the names of the candidates were given by me to the clerk. After the votes were sorted, the piles for the lower candidates were first taken, and the numbers given to the clerk ; those smaller piles were then brushed aside to make room for counting the larger piles. I think I perfectly remember giving the name and number of the vote for J. J. Fiske; I have no *546doubt as to giving both, the name and number. After the smaller piles were brushed aside, and the larger counted, the numbers were given to the clerk, and he put them down, as I supposed- The clerk then added them up, and the whole number added was 163; James M. Freeman then had 82; the selectmen made the declaration of the result from Mr. Freeman’s record, without reckoning it up themselves; the selectmen first announced the whole number of votes, and then the number necessary to a choice, and that James M. Freeman had the number necessary to a choice, 82. The selectmen then read to the meeting the number of votes the several candidates had, as a part of their declaration. When I had read to within one or two of Mr. Fiske’s name, I discovered there were no figures set against his name. I then said to Mr. Holbrook, and perhaps to Mr. Thayer, the other selectmen — ' You are sure there is a vote for Mr. Fiske ?’ Mr. Holbrook replied, ‘ Certainly there was; I can pick it up here,’ turning directly to the corner of the table where the smaller piles had been brushed up. The vote for Mr. Fiske was then found in that pile of the scattering votes. Mr. Freeman was present at the time it was found. At my statement, Mr. Freeman carried out the number against Mr. Fiske’s name, and altered the footing of the column to 161. After the mistake wras corrected, I finished reading the statement of the votes for the several candidates. The declaration was then made that there was no choice. At the time of the correction, Mr. Freeman made no objection. A very few minutes were occupied in correcting the mistake.”
The committee concluded their report as follows :—
“ The first objection urged by the petitioners is, that, in the warrant for calling the meeting, no time was stated when the poll would be opened, as required by the act passed March 9th, 1839,
The second section of that act provides, that4 the warrant for notifying any such meeting shall specify the time or times when the poll for the choice of the several officers shall be opened.’ By the 6th section of the same act, it is provided, that ‘ if any selectman, or any other town or city officer, shall wilfully neglect or refuse to perform any of the duties required of him by the third chapter of the Revised Statutes, or by the provisions of this act, he shall forfeit a sum not exceeding two hundred dollars.’
The committee find that in 1840, the next year after this act was passed, a construction was given by the house to the second section, so far as it relates to the choice of representatives, which has not been overruled by any subsequent decision. In the case of Silas Walker and Benjamin F. Keyes, members from West Boylston, (ante 394,) the report of a committee, which was agreed to by the house, is as follows :— ‘ It is apparent that the warrant does not specify (otherwise than *547by implication, if at all) the hour at which the poll should be opened. But there, is no allegation or suspicion of fraud in this case, or of any injurious result arising from this omission, and it is not sufficient to vacate the seats of the sitting members.’ The principle involved in this decision seems to be, that this section of the statute is to be considered as directory to town officers; that they incur the penalty prescribed in the 6th section lor neglect of duty; but that such neglect, except in cases of fraud, ought not to deprive the town of its representation. Such having been the. construction heretofore given to the second section of the statute, the committee do not now recommend that it should be changed or reversed. The only case which seems in the slightest degree to conflict with the foregoing decision, occurred in the year 1843, when the seat of Mr. Hannum, member from Easthampton, (ante, 471,) was vacated, ‘ because the poll was not kept open two hours, and also, that the warrant did not specify at what time the. poll would be opened.’ It was proved in that case, that the poll was not kept open two hours ; and that fact, of itself, might, and probably did, furnish a sufficient reason for the decision that was then made. Unless the poll is kept open two hours, it can never be known that all the voters in the town have had an opportunity to exercise a right secured to them by the constitution and laws of the commonwealth.
In this connection, the committee would state, that the 8th and 10th sections of the 5th chapter of the Revised Statutes have been construed as directory to town officers. Those sections declare expressly, in what manner the selectmen and constables of towns shall give notice to persons who are chosen representatives. In the year 1845 the house decided, that where town officers had omitted to give any such notice whatever, it was a neglect of duty subjecting them to a penalty, but that such omission did not affect the validity of the election, or the correctness of the member’s certificate. This decision, which is believed to be in accordance with former usage, has' been confirmed by a similar decision, made during the present session.
*548Another objection stated in the petition is, that the meeting was adjourned to the next day, and that said Freeman, having been again a candidate, thereby waived all claims to a choice on the first day.
It appears from the town records, that the meeting was adjourned to the next day, that the vote passed on the first day not to send a representative was reconsidered, that three bai-lo tings were had, that no choice was made, and that the meeting was then dissolved. But it appears to the committee, that no proceedings which took place on the second day can impair any rights, which the petitioner might have acquired on the first day. It appears that Freeman was again a candidate at the adjourned meeting, but that fact is wholly immaterial. No man can prevent people from voting for him for a public office, if they choose to do so; and he is sometimes surprised to find himself a candidate, without his knowledge or consent, and against his wishes.
Another objection is, that in the warrant for calling the meeting, it was not stated that the question would be put whether the town would send a representative.
The supreme judicial court, in compliance with an order of the house, passed June 13th, 1815, gave it as their opinion, that1 the right to send a representative is a corporate right vested in the towns by the constitution,’ which right the town may exercise or not according to their discretion. A motion, therefore, not to send a representative is always in order after the meeting is opened; and it appears to the committee, that whenever such a motion is made, the town cannot be precluded from acting upon it, by any omission in the warrant to state that such a question would be put to the meeting. This view is sustained by the language used by the court in the opinion above referred to : 1 When the town is legally assembled for the purpose of electing a representative, if a vote pass not to send one, the minority, dissenting from that vote, cannot legally proceed in the choice.’
Another objection made to the legality of the meeting is, that the town did not vote to close the poll, and it does not *549appear that the poll was closed, before the meeting was closed.
It appears from the records, that the town proceeded to business, by the selectmen opening the poll at half past twelve o’clock, and that, at twenty minutes before three o’clock, the votes were counted for representative. Manning Thayer, one of the selectmen, testifies that the poll was kept open two hours. Stephen Lewett and Amos Holbrook, the other two selectmen, speak of the poll as having been closed, but do not say at what time. Lewett’s testimony is, that ‘ after the poll was closed, the votes were sorted.’ Holbrook states, that ‘ after the poll was closed, we sorted the votes.’ It evidently appears, therefore, that the poll was closed before the meeting was closed; and, in the absence of all proof to the contrary, the committee think it fair to infer, that the poll was legally closed by a vote of the town.
Having considered the several objections, urged by the petitioners against the legality of the proceedings, at the meeting on the 10th of November, the committee come to the inquiry whether, from the facts in the case, James M. Freeman, the petitioner for a seat, was duly elected.
The committee are of opinion, that the vote for Fiske, having been found among the scattering votes, was not included in the pile of votes for Freeman, nor counted as one of the 82 received by him, as the counsel for the petitioners suggested it might have been. The selectmen, having found a vote for Fiske, soon after they declared Freeman elected, proceeded correctly in adding it to the number of scattering votes, and in making a second declaration. It was not then known to the selectmen, that any person had voted, who was not constitutionally qualified, and they clearly discharged their duty in withholding a certificate.
That John Jackson was not a citizen of the United States, is so clearly proved, that any comment is unnecessary. By a wise provision of the constitution of this commonwealth, none but citizens are allowed the right of suffrage.
The committee are of opinion, that Martin G. Cushman *550was the identical person whose birth was recorded in the town records, November 16, 1824, and that being a minor on tire 10th of November last, he was not constitutionally qualified to vote.
If, then, the votes given against Freeman by Jackson and Cushman be deducted, it will give the petitioner a majority. The whole number of votes would be 162; necessary for a choice, 82; which number Freeman received. The committee, being of opinion that he received a majority of the legal votes, deem it unnecessary to consider whether there is sufficient proof that a vote was cast for Nahum Cooke. No such vote having been found by the selectmen, the burden of proof is on the petitioners, and if they have failed to establish the fact beyond a reasonable doubt, the vote ought not to be counted. But, if the vote should be admitted, it would only increase the whole number to 163, of which 82, received by Freeman, would still be a majority.
The committee, therefore, unanimously recommend the adoption of the following resolution
Resolved, That James M, Freeman be admitted to a seat as a member of this house.”
This report was considered and agreed to1 on the 31st of January, and Mr. Freeman at once took his seat as a representative.
On the 10th of February it was ordered,2 that Mr. Freeman, “ in making up his account for attendance during the present session, be authorized to commence on the 12th of January, that being the day when he first appeared before the committee on elections.”
68 J. H. 5.
Same, 8.
Same, 50.
Same, 127.
68 J. H. 163.
Same, 227. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502598/ | The election of Benjamin Richardson, the. member returned from the town of Dana, was controverted by James S. Brown and fifty-five other voters of that town,1 upon grounds stated in the following report2 of the committee on elections, namely:—
“ At the meeting in the town of Dana, on the ninth of November last, there were four ballofings for a representative. The first three were declared to have resulted in no choice. On the fourth, the selectmen declared the sitting mgmber to be elected, and gave him a certificate of his election in the usual form. The certificate is signed by the three selectmen of the town, comprising the whole number, and contains a constable’s return, that the person elected was duly notified.
The petitioners allege, that the proceedings on the fourth ballot were irregular and illegal, and that the supposed elec-, *552tion of said Benjamin Richardson ought to be set aside and his seat vacated.
The sitting member avers, that he was, in fact, elected on the third ballot, notwithstanding the selectmen announced that there was no choice. But, if it should appear that he was not chosen on the third ballot, he contends that he was legally elected on the fourth.
A large number of witnesses have testified to facts relating to this election, but the committee have not considered it necessary to report the evidence, in full. Such portions of it only will be presented, as justice to the parties, and a correct understanding of the case, seem to require.
If the sitting member, as he alleges, was lawfully chosen on the third trial, it is of little consequence, so far as he is concerned, whether any, and, if any, what irregularities might have taken place on the fourth. He acquired rights which it was not in the power of the selectmen, or the town itself, to take away from him. If another person had been declared to be elected on the fourth trial, had received the usual credentials, and had taken his seat in the house, that seat would be vacated on making the requisite proof of a prior and paramount right.
The committee will first consider the question, whether the sitting member was chosen on the third trial, and invite attention to the following evidence:—
Isaac Doane: ‘lam one of the selectmen of Dana, and was present at the meeting on the 9th of November last. After voting on the third ballot for representative, the chairman said, that if there was no objection, he would turn the box. No objection was made, and he turned it. The votes were counted, and the result was that Benjamin Richardson had 70 votes, Mr. Stone 60, and there were 9 scattering. The town-clerk set them down and added them up. I asked the clerk why the chairman did not declare that Mr. Richardson was elected, but heard no reply. After the adding up, I stood a few minutes, and asked him again, I think, why the vote was not declared. I think it was fifteen minutes after the clerk had footed up before the vote was declared. We all saw what the result was. We all assisted in counting. Elias Woodward passed by, and, I suppose, put in a vote, and the declaration was then immediately made that there was no choice. To the best of my judgment the delay, between the time that the count was completed on the third ballot, and the declaration of the vote, was from ten to :twenty minutes. It could not have been more than a minute, after Mr. Woodward passed, before the vote was declared. From fifteen to twenty minutes were occupied in counting before footing up. The town clerk counted *553my pile of votes after me, and I counted his. It has been our custom to receive votes after the box was turned, and before the counting was completed and the declaration made.’
George G. Braham deposed, that c near the close of the third balloting he took a seat near the selectmen. The box was turned soon after and the selectmen proceeded to sort and count the votes. One of the selectmen, Mr. Isaac Doane, sat down by me, and said Mr. Benjamin Richardson was chosen by a majority of one. There was some space of time, after counting the votes, when the selectmen appeared to be doing nothing. After a while, Elias Woodward came up with a vote and laid it on the desk, and immediately, perhaps one minute after, the chairman declared there was a tie and no choice. I recollect no person voting after the box was turned, but Woodward.’
Nathaniel L. Johnson deposed: * I voted on the third ballot; went out of the hall, and returned. I had understood there was a choice in the election of Mr. Richardson. When I returned, I saw the selectmen in their places, apparently doing nothing,. After waiting a few minutes, Elias Woodward came up and offered his vote, which was objected to by Jonathan E. Stone, one of the selectmen, for the reason that it was too late; but the vote was received, and almost immediately it was declared by the chairman that there was a tie and no choice.’
Albert Bosworth deposed : ‘ After the votes were given in, (on the third trial,) the chairman said, if there is no objection, I shall turn the box, The box was turned, and the votes counted. I stood near by, and heard it said, by the chairman, that Mr. Richardson was chosen by a majority of one. The votes were counted twice at least. Soon after, a Mr. Woodward came up with his vote and some one objected ; but the vote was received, and then the selectmen declared that there was a tie, and no choice. The chairman said to the town clerk, that Mr. Richardson ivas chosen, not openly. It was not said in a whisper, but it was said so that I heard it distinctly. It was not said in a loud tone. I was about as near to him as the town clerk was. I stood by and counted the votes at the same time the selectmen did, and I know there was no counting of the votes after Woodward gave in his.’
There is more evidence of a similar purport. The law relating to this subject is contained in the fifth chapter of the Revised Statutes, section sixth: ‘ They (the selectmen) shall openly receive, sort, and count the votes (for representative) there given by the qualified voters present, and shall forthwith publicly declare who are the persons elected.’
A majority of the committee are of opinion, that the sitting member was fairly chosen on the third ballot. The votes had been counted, and it was known to the selectmen, town clerk, and to some other citizens of the town, that Mr. Richardson was elected by a majority of one vote. Ten minutes elapsed, if not more, after the result of the balloting was ascertained, before Mr. Woodward made his appearance and claimed his *554right to vote. The majority of the committee believe, that the practice which prevails, in some towns, of allowing persons to vote after the box is turned, ought to be discontinued. But whatever may be the custom, as to receiving votes while the town officers are engaged in counting, it is clearly contrary to the express provisions of law to delay making a public declaration, after the counting is finished and the result ascertained. The statute requires that the declaration shall be made forthwith. The majority of the committee do not intend, in the present case, to impute any improper motives to the selectmen. They probably intended to discharge their duty faithfully, but acted, as we think, under misapprehension or mistake.
It is easy to see, that if the result of a balloting is not declared ‘forthwith,’ or immediately after all the votes are counted, an opportunity is given to the presiding officers, should they be so disposed, to exercise an influence inconsistent with the purity of elections. Suppose, for instance, that the candidate should be the political or personal friend of the selectmen, and it is ascertained, from counting, that only one or two votes are wanted to secure his election, it might sometimes be in their power, (as they know from the check list who have not voted, as well as those who have.) by sending messengers after absentees and postponing a declaration, to secure their object. Or, if a political opponent was found to be chosen by a very small majority, they might, by the same unfair management, defeat his election.
The committee have already stated, that the petitioners contest the right of the sitting member to his seat, in consequence of irregular proceedings, which, they allege, took place on the fourth trial. The first and principal objection is, ‘ that the poll was not opened before five o’clock in the afternoon.’ The 78th chapter of the acts of the year 1844 is in these words : — ‘In all elections for representatives to the general court, when a choice is not made on the first ballot, other ballotings may be-had on the same day: provided, that in no case shall the poll at such elections be opened after five o’clock in the afternoon, on said day.’
*555Those who are familiar with the history of our legislation for a few years past, know that this act was intended as a substitute for the celebrated sunset law of 1839. So much of the second section of that law, as relates to closing the poll before sunset, was expressly repealed March 24th, 1843, and the third section was rendered inoperative by the act of 1844. Some have argued, that the sunset law was unconstitutional, others, that it was merely directory to the selectmen. It has been said, that, as the constitution allows the whole day for the choice of a representative, it includes, of course, the time between sunset and twelve o’clock at night, and that the legislature does not possess the power to alter it. Those who considered that law as mandatory merely to the selectmen, admitted that it was a good regulation for the accommodation of aged and infirm voters, and for preventing riots and disturbances, in the night time; but contended, that where an election was effected after sunset without any fraud or unfairness, the seat of the person chosen ought not to be vacated, though the selectmen might be punished for its violation. The same objections that were made to the old law, requiring the poll to be closed by sunset, may be urged against the one now under consideration, which directs that the poll shall not be opened after five o’clock in the afternoon. The same constitutional principle is involved in both, and hence the decisions of the house, in cases which occurred under the old law, are applicable to this. It will be seen, that the house took a different view of the. subject, insisting on a strict compliance with the law, notwithstanding all the objections urged against it. It was decided to be constitutional, and something more than directory to selectmen. In the year 1843, the seat of Abner Shedd, member from Burlington, (ante, 480,) was vacated for no other cause than that the poll was kept open after sunset. It was said by the committee, in that case, ‘that the act of the town, in commencing a ballot after sunset, was a direct violation by the town of a daw of the land; that, although a right to be represented is a high municipal privilege, and not to be taken away upon slight ground, still, a town violating: the law has less claim to eon-*556sideration.’ In the year 1844 the seats of the four members from Charlestown {ante, 518,) were vacated for the same reason, under the third section of the act, not repealed in 1843.
The facts in relation to the fourth ballot in the town of Dana, as proved by witnesses on both sides, are briefly these: — Immediately after the chairman had declared that there was a tie and no choice on the third ballot, he ‘presented his box,’ (in the language of a witness for the petitioners,) and said, ‘prepare yourselves for another balloting.’ James S. Brown, one of the petitioners, testified, that ‘the chairman called on the voters to prepare their votes for a fourth ballot.’ This was between four and five o’clock in the afternoon. The balloting, however, did not commence immediately after this call from the chairman. The selectmen spent some time in sealing up the returns for state officers. There was some excitement in the meeting, caused by the near approach of five o’clock. Considerable discussion took place about the legality of proceeding to another choice. The election law was read. A motion was made to dissolve the meeting, which was considered to be out of order, as the returns were not sealed up, which the law requires to be done in open town-meeting. Another motion was made to adjourn to the next day, "which the chairman at first declared to be a vote, but, the vote being doubted, it was finally determined not to be a vote to adjourn. These proceedings occupied so much time, that it was clearly past five o’clock before the first vote, on the fourth balloting, was deposited in the box. The voting then proceeded, and Benjamin Richardson, the sitting member, received nearly all the votes given in, his opponents having either left the meeting, or declined voting, on the ground, that the doings were illegal.
If the poll cannot be considered as open until the selectmen begin to receive votes and check the list, and former precedents of decisions, under the law of 1839, which have been cited, are to govern, then the sitting member was not legally chosen on the fourth ballot. The committee, however, are inclined to give the statute a more liberal construction. They are of *557opinion that the poll was opened, at the time when the chairman presented the box and called on the voters to prepare themselves with votes for another ballot. Every body was notified that another balloting was to be had. The depositing of the votes and checking the list were merely deferred fox a short time, to accommodate the selectmen in sealing up the votes for state officers, and, while thus engaged, a discussion arose, which occasioned a delay until after five o’clock.
Another objection to the legality of the election, on the fourth ballot, alleged by the petitioners, is, that the meeting was fairly adjourned to the next day. On this point, much testimony was introduced by both parties. The committee, however, are satisfied, that although the chairman at first declared the meeting to be adjourned, and thereupon several voters left their places and proceeded towards the door, intending to leave the hall, and some near the door might have left it entirely, yet that the vote was seasonably doubted and the question put again, when the chairman declared that it was not a vote to adjourn. Several witnesses testified that the vote was immediately doubted; that the selectmen had not left their seats; that the house was divided and counted; and that the meeting refused to adjourn.
The minority of the committee are of opinion, that the sitting member was not chosen on the third ballot, but think that be was constitutionally elected on the fourth.
The committee, therefore, arc unanimously of opinion that the sitting member was duly elected on the ninth of November last, and that he is entitled to a seat in this house; and they recommend that the petitioners have leave to withdraw their petition.”
This report was submitted to the house on the 20th of February,1 and ordered to be printed; and on the 27th of February it was agreed to.2
69 J. H. 34.
Same, 300.
69 J. H. 300.
Same, 356. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502600/ | The election of Lyman Robinson, the member returned from the town of Petersham, was controverted by Jo si ah White and others, on the ground that said Robinson was not, at the time of his alleged election, an inhabitant of that town. And the petition specifically alleges, “ that the said Robinson, during the month of April, and previous to the first day of *572May» A. D. 1847» removed from said Petersham to the city of Boston, with Ms family, and ever since has been and is now an inhabitant of said Boston, dwelling in said city with his family, writing his sign and pursuing the avocation of an innkeeper in Ann street, in said Boston.”
Other grounds of objection set forth in the petition were abandoned at the hearing.
It was admitted by the petitioners, that Mr. Robinson was a citizen of Petersham, and eligible as a representative, on the twentieth day of April, 1847. It then appeared, from the evidence on both sides, that he held a lease of a public house in Boston, for which the person to whom he had underlet it had failed to pay the rent. Upon learning of this failure, he immediately went to Boston to attend to the matter. Upon his arrival (in the latter part of April) he found it for his interest to purchase the furniture of the house from his sub-lessee, and to proceed to keep the house himself. He made an unsu- -- cessful effort to dispose of his lease, then placed his sign over the door of the house, and sent for his wife, who joined him in Boston, and aided him in arranging and subsequently in keeping the house. His daughters afterwards went to Boston, at different times, and his son, with his wife, who had made a part of Ms family for several years, remained in Petersham in charge of his house and farm there. During the whole of the period in question, he frequently spoke of his intention to sell his lease of the public house, if he could get a good opportunity. In the month of June, he declared himself a citizen of Petersham, in a letter to his son, and was proved also to have spoken of that town, as the place of his residence, in the months of September and October. On the seventeenth of November, he claimed an abatement of his poll-tax in Boston, on the ground, that he resided in Petersham, and exhibited his tax bill from the treasurer of that town. He did not object to a tax for five hundred dollars, personal property, assessed upon him in Boston, as he kept the public house in question there. He was chosen a selectman of Petersham in March, 1847» and highway surveyor in April; in August he acted as such *573surveyor, and signed as selectman an order upon the treasurer of the town for the payment of certain money, which was duly paid, and he voted there at the election in November.
The committee, after giving the evidence in full as a part of their report, conclude as follows:—
“ It will be perceived, that the only question submitted to the committee was of the domicil of the sitting member.
Upon this question, the committee are unanimous in the opinion, upon a careful consideration of the whole evidence, that the absence of Mr. Robinson from Petersham was for a temporary purpose only, with no intention of changing his domicil or relinquishing his rights as an inhabitant of Peters-ham. The committee, therefore, recommend that the petitioners have leave to withdraw.”
The petition was presented on the loth of January.1 The report was submitted on the 12th2 and accepted on the 22d3 of February.
70 J. H. 61.
Same, 260.
Same, 332. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502601/ | The election of Daniel N. Dewey, the member returned from Williamstown, was controverted by William Waterman and seven others, on the ground that twenty-seven persons were permitted to vote at the election, who were not inhabitants of the town, twenty-five of whom voted for the sitting member, and that Elias V. B. Concklin received a majority of the legal votes given at the election.
The petition was presented and referred to the committee on elections4 on the 13th of January. On the sixth of March, the committee reported, that they had considered the subject of the petition, and that with the consent of the petitioners, they reported that they should have leave to withdraw their petition. And this report was at once read and agreed to.5
No evidence is on file with the papers in the case.
Same, 41.
Same, 509. | 01-04-2023 | 11-22-2022 |
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