
    FAIRHAVEN.
    A meeting being called and held for the election of state officers, to he voted for on one ballot, and of a representative in congress, to be voted for on another ballot, and in separate boxes appropriately labelled, the selectmen gave notice, that votes found in the wrong box would not be counted ; it was held, that a vote for representative in congress, found in the box appropriated to the votes for state officers, was rightly rejected.
   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.’

In 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 representative 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 citizen* 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.. At 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, 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. 
      
       65 J. H. 302, 395.
     