The election of William W. Parrott, returned a member from the town of Glocuester, was controverted by John Tucker and others, on the ground of improper conduct, on the part of the selectmen, who presided at the meeting, at which said Parrott was chosen, in prematurely closing the poll without due notice.2
The facts in the case are set forth in the following report3 of the committee on elections, which was made thereon at the November session *.—
“ A meeting of the inhabitants of Gloucester was legally holden, for the choice of representatives, at the meeting-house of the harbor parish, so called, on the sixth day of May last, and was opened agreeably to the warrant, at nine of the clock in the forenoon. As soon as the meeting was opened, a, motion was regularly made, put, and carried, that the town should send but one representative to the general court. The [208]*208poll was then opened, and the balloting begun. In the course of the forenoon, between the hours of 10 and 12 o’clock, Mr. John Tucker, Mr. James Odell, Mr. Nash, Mr. Smith, and many others, severally, and at different times, made inquiry of the selectmen, when the poll was to close, to which the selectmen answered always, ‘ there is no time set,’ ‘ we have not yet determined,’ ‘ there is time enough yet,’ or by some expression to that effect: nor did they give the least intimation, when answering these inquiries, that the poll would close at an earlier hour than usual, ■which was 4 o’clock P. M. At about 12 o’clock, Capt, Israel Trask, one of the selectmen, and Mr. John Rogers, the town clerk, began to count the votes, which had then been given in, the counting of which occupied about twenty-five minutes. There is, however, some contradiction of testimony as to the time when the counting commenced, two of the selectmen testifying that it began at about half past 11 o’clock, and was finished at about 12, while a great many witnesses, equally respectable and less interested, testified that it began about 12, and closed about twenty-five minutes past 12 ; and this the committee believe to have been the fact. As soon as these votes were counted, the town clerk handed a paper to Mr. William Pierce, one of the selectmen, on which was set down the result, namely: — 264 for W. W. Parrott, 205 for Benj. K. Hough.’ This was immediately communicated to Capt. Samuel Calder, chairman of the selectmen, who thereupon instantly declared, that the poll would close at half-past 12 o’clock. This was the first public notice of the time when the poll would close, and to a great proportion of the people, the first intimation or knowledge, that it would close at an earlier hour than usual. This declaration was heard with surprise, and excited much indignation, and being reported out of the house, a great many people returned with a view to induce the selectmen to extend the time; it was stated to them that this was a surprise upon the voters, who had calculated upon the usual time of closing the poll, as no notice had been given to the contrary, and that many were on their way from Sandy Bay, and other distant parts of [209]*209the town, who could not possibly arrive before the close of the poll, unless the time was enlarged, and Major Norwood informed the selectmen, that tie had passed thirteen or fourteen persons on foot at a distance, coming to vote, who could not otherwise get up in season to vote. Mr. Nash made a motion which was seconded, that it was inexpedient to close the poll till 4 o’clock, and requested the selectmen to put the motion, which they refused to do. Great heat and agitation continued, until the poll finally closed at about a quarter past 1 o’clock; but no violence was attempted or threatened, nor was the balloting interrupted. The final result of the balloting was 289 for the sitting member, 261 for Benjamin K. Hough, and one for a Mr. Huston, in the whole 551 votes, giving to Mr. Parrott, an excess of 27 over all the other votes. From this it appears also that eighty-two votes were given in, from the time the counting first began, about 12, till the poll was closed at a quarter past one. It appeared in evidence, that many persons lost their votes from want of notice, and the committee believe that more than twenty-seven additional votes would have been cast, had seasonable notice been given. The selectmen, upon being questioned by the committee, why they had not given earlier notice of the time of closing the poll, in answer, alleged that they were influenced to withhold the notice or declaration, because at the April meeting preceding, they had experienced much difficulty, and some disturbance had arisen, when the time arrived, by many insisting that the poll should not then be closed, and that votes should be received after the time fixed; but as it cannot be supposed, nor was it pretended by the selectmen, but that some notice should be given, previous to closing the poll, the committee could not perceive, how this could have been their motive for the delay ; as it must have been obvious to them, that to withhold such notice, when they had determined to anticipate the usual time by three hours, was in fact to furnish a cause, and even an apology for disturbance and clamor; much Jess do the committee perceive, how the selectmen could have been influenced by that [210]*210reason, to withhold all public notice whatever, that the poll would close in the forepart of the day.
The committee also further report, that the town of Gloucester contains six parishes, and between 900 and 1000 qualified voters for representatives; that the harbor parish, in which the meeting was held, contains about one half the population of the town; that three or four of the parishes are from four to six miles distant from the place of meeting; that for ten years previous to the present election, the time for closing the poll, in the choice of representatives, had been announced, either by N. B. upon the warrant, or by posting up a notification on the morning of the election day, in some conspicuous situation at the place of meeting; that, for the eight preceding years,'the meetings had opened at 10 o’clock, and the poll had always been kept open till 4 o’clock, P. M.; that no one of the present board of selectmen had been for some years previous a selectman of said town, but they were well acquainted with the relative local situation of the different parts, and well knew the times usually allowed for voting at former meetings; that, for some days before this election, they had come, to the determination to open the meeting at 9 o’clock, and close the poll in the forenoon, or before the usual hour of dinner; and it was stated, that they had made some arrangements in their lists of voters, (though what they were, did not very clearly appear,) which would much facilitate the business of the day. It appeared further in evidence to the committee, that all the individuals, composing the board of selectmen, were friendly to the choice of Mr. William W. Parrott, the sitting member, and politically hostile to the success of Mr. Benjamin K. Hough, the opposing candidate, and that it was generally understood, that the election then approaching would be warmly contested.
The committee further report, that six days previous to the day of election, and after the selectmen had come to the determination to open the meeting at 9 o’clock, and to close the pol in the forepart of the day, Capt. Samuel Calder, chairman of the selectmen, signed sundry circular letters as ‘ chairman [211]*211of the committee of elections,5 which were sent into different parts of the town, and directed to persons who were supposed to be friendly to the election of Mr.
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The election of William W. Parrott, returned a member from the town of Glocuester, was controverted by John Tucker and others, on the ground of improper conduct, on the part of the selectmen, who presided at the meeting, at which said Parrott was chosen, in prematurely closing the poll without due notice.2
The facts in the case are set forth in the following report3 of the committee on elections, which was made thereon at the November session *.—
“ A meeting of the inhabitants of Gloucester was legally holden, for the choice of representatives, at the meeting-house of the harbor parish, so called, on the sixth day of May last, and was opened agreeably to the warrant, at nine of the clock in the forenoon. As soon as the meeting was opened, a, motion was regularly made, put, and carried, that the town should send but one representative to the general court. The [208]*208poll was then opened, and the balloting begun. In the course of the forenoon, between the hours of 10 and 12 o’clock, Mr. John Tucker, Mr. James Odell, Mr. Nash, Mr. Smith, and many others, severally, and at different times, made inquiry of the selectmen, when the poll was to close, to which the selectmen answered always, ‘ there is no time set,’ ‘ we have not yet determined,’ ‘ there is time enough yet,’ or by some expression to that effect: nor did they give the least intimation, when answering these inquiries, that the poll would close at an earlier hour than usual, ■which was 4 o’clock P. M. At about 12 o’clock, Capt, Israel Trask, one of the selectmen, and Mr. John Rogers, the town clerk, began to count the votes, which had then been given in, the counting of which occupied about twenty-five minutes. There is, however, some contradiction of testimony as to the time when the counting commenced, two of the selectmen testifying that it began at about half past 11 o’clock, and was finished at about 12, while a great many witnesses, equally respectable and less interested, testified that it began about 12, and closed about twenty-five minutes past 12 ; and this the committee believe to have been the fact. As soon as these votes were counted, the town clerk handed a paper to Mr. William Pierce, one of the selectmen, on which was set down the result, namely: — 264 for W. W. Parrott, 205 for Benj. K. Hough.’ This was immediately communicated to Capt. Samuel Calder, chairman of the selectmen, who thereupon instantly declared, that the poll would close at half-past 12 o’clock. This was the first public notice of the time when the poll would close, and to a great proportion of the people, the first intimation or knowledge, that it would close at an earlier hour than usual. This declaration was heard with surprise, and excited much indignation, and being reported out of the house, a great many people returned with a view to induce the selectmen to extend the time; it was stated to them that this was a surprise upon the voters, who had calculated upon the usual time of closing the poll, as no notice had been given to the contrary, and that many were on their way from Sandy Bay, and other distant parts of [209]*209the town, who could not possibly arrive before the close of the poll, unless the time was enlarged, and Major Norwood informed the selectmen, that tie had passed thirteen or fourteen persons on foot at a distance, coming to vote, who could not otherwise get up in season to vote. Mr. Nash made a motion which was seconded, that it was inexpedient to close the poll till 4 o’clock, and requested the selectmen to put the motion, which they refused to do. Great heat and agitation continued, until the poll finally closed at about a quarter past 1 o’clock; but no violence was attempted or threatened, nor was the balloting interrupted. The final result of the balloting was 289 for the sitting member, 261 for Benjamin K. Hough, and one for a Mr. Huston, in the whole 551 votes, giving to Mr. Parrott, an excess of 27 over all the other votes. From this it appears also that eighty-two votes were given in, from the time the counting first began, about 12, till the poll was closed at a quarter past one. It appeared in evidence, that many persons lost their votes from want of notice, and the committee believe that more than twenty-seven additional votes would have been cast, had seasonable notice been given. The selectmen, upon being questioned by the committee, why they had not given earlier notice of the time of closing the poll, in answer, alleged that they were influenced to withhold the notice or declaration, because at the April meeting preceding, they had experienced much difficulty, and some disturbance had arisen, when the time arrived, by many insisting that the poll should not then be closed, and that votes should be received after the time fixed; but as it cannot be supposed, nor was it pretended by the selectmen, but that some notice should be given, previous to closing the poll, the committee could not perceive, how this could have been their motive for the delay ; as it must have been obvious to them, that to withhold such notice, when they had determined to anticipate the usual time by three hours, was in fact to furnish a cause, and even an apology for disturbance and clamor; much Jess do the committee perceive, how the selectmen could have been influenced by that [210]*210reason, to withhold all public notice whatever, that the poll would close in the forepart of the day.
The committee also further report, that the town of Gloucester contains six parishes, and between 900 and 1000 qualified voters for representatives; that the harbor parish, in which the meeting was held, contains about one half the population of the town; that three or four of the parishes are from four to six miles distant from the place of meeting; that for ten years previous to the present election, the time for closing the poll, in the choice of representatives, had been announced, either by N. B. upon the warrant, or by posting up a notification on the morning of the election day, in some conspicuous situation at the place of meeting; that, for the eight preceding years,'the meetings had opened at 10 o’clock, and the poll had always been kept open till 4 o’clock, P. M.; that no one of the present board of selectmen had been for some years previous a selectman of said town, but they were well acquainted with the relative local situation of the different parts, and well knew the times usually allowed for voting at former meetings; that, for some days before this election, they had come, to the determination to open the meeting at 9 o’clock, and close the poll in the forenoon, or before the usual hour of dinner; and it was stated, that they had made some arrangements in their lists of voters, (though what they were, did not very clearly appear,) which would much facilitate the business of the day. It appeared further in evidence to the committee, that all the individuals, composing the board of selectmen, were friendly to the choice of Mr. William W. Parrott, the sitting member, and politically hostile to the success of Mr. Benjamin K. Hough, the opposing candidate, and that it was generally understood, that the election then approaching would be warmly contested.
The committee further report, that six days previous to the day of election, and after the selectmen had come to the determination to open the meeting at 9 o’clock, and to close the pol in the forepart of the day, Capt. Samuel Calder, chairman of the selectmen, signed sundry circular letters as ‘ chairman [211]*211of the committee of elections,5 which were sent into different parts of the town, and directed to persons who were supposed to be friendly to the election of Mr. Parrott, and who might have an influence in getting his friends to the polls, setting forth the propriety of choosing but one representative, recommending Mr. Parrott as worthy of their confidence and their suffrages, and urging upon them the necessity that every « republican5 should attend as soon as the meeting was opened, alleging as a reason, that the first business would be to decide on the number of representatives the town should elect. It also appeared in evidence to the committee, that at a caucus or meeting of the friends of Mr. Parrott, assembled to devise measures to promote his success, Mr. Peirce, one of the selectmen, made known the intention of the selectmen to close the poll in the forepart of the day, and indeed it seemed to be admitted before the committee, that it was well understood by many, if not most of the active and zealous friends and supporters of Mr. Parrott, that the poll would close at least as early as one o’clock; and on the part of the sitting member, it was contended that this was no secret to any one, and that the knowledge of this, as well as of the circular letter, was equally general among his opponents or the political friends of Mr. Hough; but there was no evidence whatever to satisfy the committee, in any degree, that any one of the political opponents of Mr. Parrott had ever read the letter before the election ; the most that appeared being, that one of them heard it or part of it read ; nor that any one of them had any knowledge whatever, that the poll would close at an earlier hour than usual, until the determination to close it was announced at the meeting, in the manner above stated; and the committee believe, that it was the intention of the selectmen not to communicate their determination to close the poll in the forenoon, to the friends of Mr. Hough, or to the public generally, but in the manner above stated.
In the opinion of the committee, there can be no doubt, that, at all elections, the voters are entitled to reasonable, notice of the time when the poll is to close, which notice may be either [212]*212actual, by publishing the same in season, or implied, where there is no essential departure from established usage; and taking into consideration the remote situation of many parts of the town of Gloucester from the place of meeting; the practice for many years before, to keep the polls open till 4 o’clock, P. M., at the same time, that public notice was always given, at least as early as the opening of the meeting, when the poll would close; the determination of the selectmen, at this election, to anticipate the usual time, by at least three hours ; and that the only public notice they gave was less than one hour before the poll was finally closed; the committee are of opinion, that reasonable notice was not given in this instance, and that, from the circumstances of the town and the situation of the voters, it is wholly uncertain what otherwise would have been the result of the election. And the committee think proper further to state, that, from all the evidence adduced before them, they are compelled to believe, that the selectmen did refuse to give public notice at the meeting, as before stated, when the poll would close, and did communicate their intention to close it earlier than usual, to the friends of Mr. Parrott, and withhold that communication from the friends of Mr. Hough, his opponent, and from the public generally, with the view, and for the purposes, of obtaining, in that election, the unfair, and of course, illegal advantages, which must result from the knowledge of this circumstance on one side, and the ignorance of it on the other.
The committee therefore beg leave to report, and do report, that the election of William W. Parrott, as representative from the town of Gloucester, is wholly void, and that his seat in this house ought to be vacated.”
The report was agreed to by a vote 132 to 37.1