
    HOPKINTON.
    "Where an election was controverted on the ground that the votes in unsealed envelopes were rejected, which, if they had been received, would have prevented an election; and the committee on elections reported thereon, that the number so received was not certainly proved; that they were not examined until more than an hour afterwards, during which time, they were out of the custody of the selectmen; that only three were certainly proved to have been received, one of which was unsealed when deposited, and two unsealed envelopes which were examined contained votes for the sitting member; it was held, that such election was valid.
   The election of William Claflin, returned a member from the town of Hopkinton, was controverted by Jefferson Pratt and others, for certain reasons stated in the report of the committee on elections, to whom the case was referred, as follows: —

“ At the annual election in Hopkinton on the 10th of November last, the declaration of the selectmen on the vote for representative was as follows: — whole number of ballots, 437; necessary for a choice, 219. William Claflin had 219; Charles Seaver, 212; A. W. Johnson, 3; L. P. Coburn, 1; D. J. Nye, 1; J. A. Fitch, 1; and William Claflin was declared to be chosen. The record was made up in accordance therewith, and a certificate duly issued thereon.

The petitioners set forth, that ‘the selectmen refused to count seven ballots, found in unsealed envelopes, and that if all the ballots given in for a representative had been counted, no person would have been constitutionally elected!

It appeared in evidence before the committee, that, upon opening the poll, the selectmen cautioned the voters to be careful that their envelopes were sealed, as they had decided that their duty required them to reject all that should be found unsealed, and none such would be counted. This admonition was repeated once or more during the balloting, and particularly on one occasion of the depositing of an envelope, when the chairman announced to the meeting, that one of the electors had lost his vote, by depositing it in an envelope that was unsealed. .

The votes were received by the chairman of the selectmen at the desk, two other selectmen standing by him to keep the check lists, while the other two, as soon as a suitable time came for emptying the box, were engaged in opening the envelopes and arranging the votes. This was done on a seat formed by a recess for a window, which served the purpose of a table, in the rear of the desk. Tims, the selectmen were so arranged that their backs were toward each other, with a seat interposed between, so that the person who received the votes, and those who opened the envelopes, would neither of them be under the observation of the other. As often as more envelopes were wanted for counting, the box was emptied. As the envelopes were examined and counted, whenever any were found unsealed, they were thrown aside without further examination, and without any further care in relation to them, the selectmen testifying that they considered them of no consequence whatever. When the poll was closed, the votes were taken to the desk and there counted by the. whole board of selectmen. The counting and declaration occupied from three-fourths of an hour to an hour, during which time the unsealed envelopes were left in the window, out from under the care or observation of the selectmen; and more or less of the people of the town had pressed into the inclosure about the desk, and occupied the space behind the selectmen, and between them and the window where the unsealed envelopes were laid. After the counting was finished and the declaration, made, the chairman took from the window seven unsealed envelopes, and found the votes for representative therein to be five for Charles Seaver and two for William Clafiin. Neither of the other selectmen examined these ballots.

The chairman of the selectmen testified, that he did not know, from his own personal knowledge, that more than one unsealed envelope was received. He also testified, that he did not know where those that he examined came from, or how they came in the window from which he took them. The selectmen who opened the envelopes were unable to tell how many of them they found unsealed. But one of the two was called to testify in the case, and he would not swear positively that there were more than three, though he thought there were four, and there might be more. He did not know but there might be six or even ten. In fact, he seemed to have no distinct recollection about the number, and gave as a reason for it, that he took no particular notice of them, because he considered them of no consequence. He also swore that he did not know, that the envelopes examined by the chairman were the same that they threw out.

From this statement of facts, we come to these conclusions :

1. That the number of unsealed envelopes found among those that were duly received is left in doubt, not more than three being certainly proved.

2. Those which were found are not satisfactorily proved to have been the same, or any portion thereof, that were after-wards examined by the chairman of the selectmen, about an hour’s time having intervened, during which they were out of the possession or care of the selectmen, and so left, that sundry persons had the opportunity to add to or abstract from their number, or to change them entirely. "

3. If the three unsealed envelopes, which are proved to have been duly received and thrown out by the selectmen, had also been proved to be among the seven examined by the chairman, it would not diminish the doubt; because, one of those is proved to have been open and known to be open, when received, and therefore was clearly illegal, and among those examined by him were two votes for the sitting member.

We therefore think that the petitioners have failed to sustain their positions, and report that they have leave to withdraw their petition.”

Three members of the committee, (Messrs. Schouler, Jones, and Bond,) dissenting from the conclusions of the report, presented a statement of the evidence in the case, and concluding thereupon as follows: — •

“ The case is as follows : — At the November election, Mr. Claflin was declared elected a member of this house, from Hopkinton. He had just the required number of votes to. elect him. Seven unsealed envelopes found in the ballot-box were not counted. These seven envelopes were afterwards taken by the chairman of the selectmen, opened, and counted. They contained two votes for Mr. Claflin, and five against him. Of course, if they had been added to the count by the selectmen, Mr. Claflin would not have been declared elected. It is clear, therefore, that he did not receive a majority of the votes of Hopkinton.

The report of the majority attempts to throw doubts upon the testimony. But if the fact that there were seven unsealed envelopes, and that two of them only were for Mr. Claflin, is not proved, then there has been no fact proved before the committee the present session. The chairman of the selectmen swears positively to the fact, and he is the only one who could thus swear. This is the only point in the case. It is the whole case.

The undersigned therefore report, that the petitioners have made out their ease, and that Mr. Claflin is not entitled to a seat in this house, as a member from the town of Hopkinton.”

The report, giving the petitioners leave to withdraw, was agreed to, 
      
       74 J. H. 511.
     