
    NEEDHAM.
    A meeting being held for the election of a representative, three ballotings took place, at the last of which an election was effected. At the first balloting, the names of all persons who voted were cheeked, according to the statute. At the two last bal-lotings, the names were not checked, but the list was held by one of the selectmen, and so far used, that no person was permitted to vote, until it was ascertained that his name was on the same ; it was held, in the absence of all fraud, or double voting, that the neglect to use the check list did not invalidate the election.
   The election of Henry Robinson, returned a member from the town of Needham, was controverted by Daniel Kimball and others, on the ground, that the meeting at which the election took place was disorderly; that votes were put into the' ballot-box in an irregular and illegal manner; and that the check list was not used in the manner prescribed by the statute.

The committee on elections, to whom the petition was referred, reported thereon the evidence adduced in the case, together with their conclusions of fact and law thereupon, as follows :>—

“ That the meeting in the town of Needham, at which the sitting member claims to have been elected, was legally called and properly conducted, except that on the trial where the member claims an election, the names of persons voting were not checked by the presiding officers, or by any person appointed by them therefor, as required by the act of 1839. e. 42, ‘ concerning elections.’

At said meeting, there were two unsuccessful trials to elect a representative, and the member contends that he was elected on the third.

At the first trial, all persons voting were checked, agreeably to the requirements of law. On the second and third trials, the names of persons voting were not checked, as before named, but the check list was held by one of the selectmen, and used, so far as that no person was permitted to vote, until it was ascertained by the selectmen that his name was on the list.

The selectman holding the ballot-box was personally acquainted with nearly or quite all the voters in town ; and, on the third trial, only one person offered to vote of whose right he had doubts, and that person was not allowed to vote, till it was found that his name was on the list.

It has been the custom in the town of Needham, since the passage of the said act of 1839, not to check the names of persons voting, after the first ballot, but to use the check list in the manner before described.

There is no evidence of any fraud or double voting on the third trial, or at either of the preceding trials.

A majority of the committee regard the aforesaid act of 1839 as only directory, and that it was not the intention of the legislature, that the neglect of the selectmen, to obey the requirements of this law, should operate to disfranchise the citizens of a town, and thwart the wishes of the voters, fairly and honestly expressed at the ballot-box; but that the penalty of two hundred dollars, provided by the act of 1839, should rest upon and apply to the only offending parties, the selectmen, as an atonement for the neglect of a plain duty; and that this punishment would be a sufficient guaranty for the enforcement of a due observance of the law.

The requirements of this law are the same, with regard to the use of the check list, in voting for governor, senators, electors of president, &c., and representatives in the general court; and it is believed that it could not have been the intention of the legislature, to place at the disposal of a board of selectmen the political interests of the state and nation, and allow them, at pleasure, either directly or indirectly, to annul the right of suffrage.

A majority of the committee, therefore, respectfully report, that Henry Robinson, now holding a seat in this house, as representative from the town of Needham, was duly and legally elected, and is entitled to his seat.”

The report was agreed to. 
      
       73 J. H. 554.
      
     