
    CHESTER.
    Duty of the moderator of a town-meeting to make certain a vote when scrupled or doubted by a competent number of the voters.
   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.

The 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 votes 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, opened 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.

Upon 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.

The 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, but does not appear to have been afterwards acted upon. 
      
       45 J. H. 42.
     
      
       45 J. H. 119.
     