
    SUTTON.
    A town, entitled to send three representatives, voted to send four, and proceeded to elect four at separate ballotings: The election of the last chosen was adjudged void, and a question raised as to the validity of the election of the first three chosen.
   The election of Josiah Stiles, Jonas Sibley, Darius Russell, and Abijah Burnap, members returned from the town of Sutton, was controverted by Asa Goodale and others, on the ground, that the said town did not contain a sufficient number of ratable polls to entitle it to four representatives, and that the vote of the town to send four was illegal.

On the ninth of June, the committee on elections made the following report thereon, which was agreed to.

“ A meeting was holden in said town, on the fourth day of May, now last past, when it was voted to send four representatives to the present general court, and accordingly the town did proceed to choose, and did choose four representatives, at four separate ballotings, under the same warrant, and on the same day. At the first ballot, Josiah Stiles, Esq., had a majority of the votes and was declared chosen ; at the second ballot, Jonas Sibley had a majority of the votes and was declared chosen ; at the third ballot, Darius Russell, Esq., had a majority of the votes, and was declared chosen; and at the fourth ballot, Abijah Burnap had a majority of the votes and was declared chosen. The committee find, that the town of Sutton, at the time of said election, did not contain 825 ratable polls, but that it did contain over 600 ratable polls. Wherefore the committee are unanimously of opinion, and do report, that the supposed election of Abijah Burnap, as a representative of said town, on the said fourth day of May, was altogether void and of no effect, and that he is not entitled to a seat.”

On the twelfth of February, the report in this case was recommitted by the following vote: —

“ Whereas it appears from the report of the committee on elections, that the town of Sutton, in the county of Worcester, at a meeting holden on the fourth day of May last, did vote to send four representatives to the present general court, and accordingly did choose four representatives, at four different ballotings, under the same warrant and on the same day; that at the first balloting, Josiah Stiles, Esq., was declared chosen ; at the second balloting, Jonas Sibley, Esq., was declared chosen; at the third balloting, Darius Russell, Esq., was declared chosen; and at the fourth balloting, Abijah Burnap, Esq., was declared chosen: —

And whereas it further appears from said report, that the town of Sutton did not contain, at the time of said election, the number of eight hundred and twenty-five ratable polls, being the number required by the constitution of this commonwealth, to entitle it to send four members ; in consequence of which the said committee did report, that the supposed election of Abijah Burnap was altogether void and of no effect; but did not report their opinion as to the supposed election of Josiah Stiles, Jonas Sibley, and Darius Bussell, who now hold seats: Therefore, ordered, that the report of the committee on elections, respecting the election of the members from Sutton, be recommitted to the same committee, with instructions to report their opinion as to the right of said Josiah Stiles, Jonas Sibley, and Darius Russell, to seats in this house.-’

The committee do not appear by the journal to have made any report in pursuance of the above order, but the order has the following memorandum on it, signed with the initials of the chairman : —

“ The committee did not report m respect to the first three representatives, in consequence of the law having passed inflicting penalties upon towns sending more than a constitutional number of representatives.”

[The law referred to is the statute of Ibid, c. 135, which was reported and twice read in the house, the same day the committee reported in the above case, but was not enacted until February 27, 1813.] 
      
       33 J. H. 31.
     
      
       33 J. H. 146.
     
      
       A memorandum on the report, in the hand-writing of the chairman of the committee, states, that, “ the committee were not unanimous, respecting the election of the said Stiles, Sibley, and Russell.”
     
      
       33 J. H. 438.
     