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City Document — No. 2. 

REPORT 



OF 



THE COMMITTEE 



REMONSTRANCE OF WM. R. HUSTON 



RELATIVE TO THE 



MUNICIPAL ELECTION OF WARD 3. 




ROXBURY: 
JOHN M. II EWES, PRINTER. 

1858. 



dtfl of Ho* burn. 



In Common Council, Jan. 4, 1858. 

Remonstrance read, and referred to a Special Committee of five, con- 
sisting of Messrs. Nichols, Tower, Bumstead, Brewer, and Batchelder. 

FRANKLIN WILLIAMS, Clerk. 



In Common Council, Jan. 11, 1858. 

Ordered, That the Committee on the Remonstrance of William R. Hus- 
ton be authorized to submit their report in print. 

FRANKLIN WILLIAMS, Clerk. 



Cifg fif lUrkrg. 



In Common Council, January 14, 1858. 
The Committee to whom was referred, on the 4th inst., the Memo- 
rial of William R. Huston, Warden pro tern, of Ward Three, 
respecting alleged informalities and errors in the returns of the 
last election in that Ward, have given the subject a patient and 
careful consideration, and submit the following 

KEPORT. 

The Memorialist alleges that the certificates were signed in 
blank by the Ward Officers, and filled up incorrectly by the 
Clerk, and sent away without the knowledge or consent of the 
Warden, before the Inspectors had examined the votes, or the 
vote was declared in an official manner ; that an inspection of the 
Clerk's figures showed errors ; that on a statement to this effect 
being made to the Clerk, that officer said he did not know what 
business the Warden had to do with his (the Clerk's) figures ; and 
that the Clerk's figures, on examination by the other officers, 
were so imperfect that they could not be recognized even by the 
Clerk himself. 

Your Committee held a meeting at the City Hall, on Wednes- 
day evening the 6th inst., at which the Warden, Inspectors and 
Clerk were present, and were examined as to the transactions in 
the Ward Room of Ward Three on the occasion of the last elec- 
tion. The City Solicitor was also present, and at the request of 
the Committee acted as its Clerk. It may be proper here to 
state that, although the witnesses were not sworn for this special 
purpose, they all, with one exception, that of Mr. Curtis, who is 
not an officer of the city, were asked, previous to giving their tes- 



timony, if they considered themselves under oath, to which each 
one replied for himself that he considered that his evidence was 
to be given as a sworn officer, and that it was as such to be taken, 
and was a part of his duty. 

It appears that the Ward Meeting was regularly opened ; that 
the Warden being absent, an election was held, and William R. 
Huston was elected Warden pro tern., was qualified and performed 
duty as such for that day. The balloting for City Officers, as was 
required by law and according to the legal notification to the in- 
habitants, was then commenced and continued until the polls were 
closed. That during the day and while the balloting was in pro- 
gress, some of the Inspectors signed blank returns or certificates 
of election, and that other blanks, of a similar nature, were signed 
after the polls were closed, all of which were given to the Clerk, 
were by him filled up, and sent out for distribution, before the 
votes given in had been properly counted, and before the returns 
were verified by the Warden and Inspectors. That no Record 
Book was kept at the meeting, as is required by law, but that the 
Clerk kept a memorandum on a sheet of paper, which was so 
blotted and disfigured and so carelessly written, that it was im- 
possible for any of the Ward Officers, including himself, to de- 
cipher or understand it. 

Your Committee append to this Report an abstract of the tes- 
timony taken by them, to which they invite your particular 
attention, as exhibiting a gross dereliction of duty as well as 
unpardonable carelessness, not only on the part of the Clerk, 
but of the Warden pro tern, and all the Inspectors. The whole 
conduct of the former appears to have been marked by a wilful 
disregard of the State laws and the City Charter, attended by in- 
civility to his brother officers. 

Your Committee, in this connection, do not think it beyond the 
limits of their duty to call the attention of the Council to the 
statute of the Commonwealth, imposing a penalty on Town and 
City Officers for neglect of certain duties, which was approved by 
the Governor May 2, 1848, and is printed in the Municipal Reg- 
ister for 1857. By this statute one at least of the Ward Officers 
of Ward Three is, in our opinion, liable to a heavy penalty, on his 
own confession, independent of the evidence of others. It appears 



that the law requiring all votes given in at election shall be de- 
clared and registered in open Ward Meeting, was totally disre- 
garded ; — no such declaration having ever been made, and the 
registration, if made at all, having been made three days after the 
meeting, in private, at the house or office of the Clerk. 

The certificates of election, having been signed before the re- 
sult of the balloting was or could be known, were filled up by the 
Clerk, having, as it now appears, false statements, in less than an 
hour after the polls were closed, and were sent as official notices 
by the proper officer. No blame, however, is attributed to the 
Constable, Mr. Ford, as he only acted in the line of his duty. 

That the whole proceedings respecting the election were known 
to all the Ward Officers to be irregular, is shown in the fact that 
the Warden pro tern, made several statements to the meeting re- 
specting the results of the balloting, remarking at the same time 
that no one of the Officers would make oath to their correctness. 
Such statements can in no way be considered the declarations in 
open Ward Meeting which are required by law, and all the Offi- 
cers state that they are unable to give the names of the persons 
elected. 

The Clerk's conduct throughout the day appears to have been 
in no respect in consonance with a sense of official propriety. His 
answers, when called upon for explanation, he confesses were in- 
tentionally evasive, and in one instance he denied the right of the 
Warden pro tern, to call in question or examine his figures. He 
acknowledges, too, that he found, three days after the election, 
and corrected several errors in the addition of figures on his origi- 
nal memorandum, some of which were in reference to the votes 
for members of the Common Council ; and he says, but will not 
swear, that no one error made a difference of three or four, per- 
haps seven votes ; while, according to his returns, the Council- 
men were elected by the small plurality of from ten to twenty 
votes, and one by eight votes. This original memorandum he has 
destroyed, and there is now no possible means of verifying his 
statements. 

In closing this Report, your Committee would remark upon 
the great importance, on all occasions, of requiring at the 
hands of the Officers charged with the duty of attending at 



the polls, and supervising every, even the most inconsiderable 
elections, the strictest accountability, and intrusting them only to 
competent persons. The latter is beyond the control of the 
Council, as the choice of Ward Officers belongs to the voters of 
the different Wards, -who are amply able to take care of their own 
interests. But in regard to the former, the City Council has a 
responsibility, as its two branches are judges of all returns made 
to them, and may, as they ought to do, examine into all returns 
made to them. If such practices as we have detailed are allowed 
to exist once without rebuke and correction, they may, and possi- 
bly will be repeated ; and in a closely contested election for mem- 
ber of Congress, might deprive the lawful person of his seat, or 
raise a question in the National Legislature which would occupy 
its attention for a long period, to the detriment of public and pri- 
vate business, involving much expense to the government and to 
individuals. 

In this instance, the wrong person is known to have received an 
official certificate that he is Clerk of the Ward, and another that 
he is a member of the School Committee, while the person actu- 
ally chosen Clerk is unjustly deprived of the pleasure and honor 
of serving his constituents. 

Under the circumstances, your Committee report that, in their 
opinion, the certificates of election issued to the Common Council- 
men, and all the Ward Officers of Ward Three, on the second 
Monday of December, 1857, are illegal ; that the election held 
on that day was not conducted according to law ; and that the 
said offices should be all declared vacant. And your Committee 
recommend the passage of the accompanying order. 

All of which is respectfully submitted. 

ROBERT C. NICHOLS, ) 
EBEN'R W. BUMSTEAD, n 
ALBERT BREWER, f °™»>*»' 

ALBERT BATCHELDER, J 



[ORDER.] 



dtjj of ^osbra. 



In Common Council, Jan. 14, 1858. 

Ordered, That the Mayor and Aldermen be forthwith notified, 
that the recent election of members of the Common Council from 
Ward Three has been declared void by this Board ; and that four 
vacancies exist in this Board from said Ward ; and that the 
Mayor and Aldermen be requested to order a new election for 
the purpose of filling said vacancies. 



TESTIMONY BEFORE THE COMMITTEE. 



Before a Special Committee of the Common Council, to whom was referred 
the Protest from William R. Huston, in relation to the last City election 
in Ward 3. The following is a condensed statement of the testimony of 
Nelson Curtis and the Ward Officers. 

Testimony of Nelson Curtis. 

Was not present when the result of the voting was declared. When I 
entered, the Clerk had left the room and taken the account with him ; one 
of the Inspectors was also absent. On their return, one of the Inspectors 
took the Clerk's account and called off the figures, and another Inspector 
cast them up. Their examination varied the result from that of the Clerk. 
The Clerk had the result of the election on a sheet of paper which pur- 
ported to be his record. The Clerk stated that it was difficult for him to 
understand his own figures. The discrepancy related to Councilmen, 
School Committee and Ward Officers. My impression is, that the Clerk 
could not carry out the figures correctly. At this time the meeting was not 
adjourned. 

Testimony of AVilliam R. Huston. 

I was sworn in as Warden, pro tem. of Ward 3, on the day of the last 
election. After the balloting was over, Mr. Gragg requested me to sign 
certificates. I examined them and think some names were written in. I 
hesitated at first, and he said it was the usual custom. I then signed some 
ten certificates, when some one told me that he did not believe the Clerk 
competent. I run up one column of his figures, and I did not make them 
come out as he did. I told the Clerk so, and he replied that his count was 
right. I cast up the figures and found them wrong. The Clerk then said, 
" this is my private document ; if you have any doubt, you can count the 
votes." He said he knew some of the votes had been carried away. After 
the return of the Clerk and the absent Inspector, they went over the figures 
and made most of them out. The figures were so blotted and so imper- 
fectly made, as to make it impossible to add them correctly, and the Clerk 



10 

said, after we got through, that he could not tell whether the figures were 
correct or not. I declared the result from a piece of paper handed to me 
by one of the Inspectors, (Mr. Wiggin,) and at the same time stated to the 
meeting, that the Clerk and Inspectors would not swear to the result. I 
did not consider this an official declaration. No official declaration of the 
votes for Councilmen and Ward Officers have been made. The Clerk 
filled up the certificates and sent them away without my knowledge or con- 
sent. This was done before the Inspectors had examined the Clerk's 
record. I did not see the Clerk have any book. I was not aware that the 
charter required a record book. 

Testimony of J. N. Pennock, the Clerk of the Ward. 

I was sworn in as Clerk of Ward 3, on the day of the last election. 
I have not been able to get any book. I kept the records on a 
sheet of paper. I took the figures from Mr. Gragg and Mr. Har- 
mon. Seventeen of the supposed errors, as made out by the In- 
spectors, I found were not errors. I could correctly read my own 
figures. There were not any blots on my record. I discovered no 
errors myself that evening. Had no doubt, in my own mind, in re- 
gard to my figures. Some two or three days after the election, I made a 
copy of the record. I found some errors, which I corrected ; some of them 
were against the Councilmen. The errors consisted of three or four, per- 
haps seven. I will not swear they did not exceed seven. The highest 
plurality received by Councilmen, about twenty odd, and the lowest about 
ten. The election on that day was very close. Some of the Councilmen 
may not have received more than five plurality, but cannot swear to it. 
When asked by the officers to define my figures, I gave evasive answers; 
this was my reason for refusing to sign or swear to their figures. I de- 
stroyed the original record. I will swear the copy is a correct result of the 
ballot, as the Inspector called them off. The Inspectors did not examine 
the returns before I filled up the certificates. The officer took them. I 
sent a certificate to Dr. Streeter, when it belonged to Dr. Nute ; this was 
done by accident, owing to the confusion in the room. When Mr. Gragg 
asked me to define my figures, I evaded his questions, and did not answer 
in accordance with the responsibility of my office. 

Testimony of Moses Gragg, Inspector. 

Mr. Harmon and myself assorted and counted. Mr. Wiggin attended 
the check-list. I gave the Clerk the result of all the votes. I signed cer- 
tificates about two o'clock. After the balloting closed I asked the Warden 
to sign certificates. He said, is this right ? I said we had been in the habit 
of so doing, and I presumed it would be all correct. The Warden^said " I 
am not satisfied ; here is an error in my own name of nine votes." The 
Clerk said, " Count the ballots." Mr. Harmon said some of the ballots had 



11 

been taken away. Mr. Harmon took the check-list and called off the 
figures ; added up Mr. Hall's column and found it correct. On the next 
column Mr. Harmon hesitated. I asked the Clerk to explain, and he hesi- 
tcd a minute or two. Mr. Huston asked the Clerk to explain his figures> 
and the Clerk said " I don't know that this is any of your business." The 
Clerk then took his Minutes and left. The Clerk was sent for and return- 
ed. "We concluded to revise the list. I took the Clerk's list and called 
them off, and when I was unable to make out his figures I applied to the 
Clerk. The Inspectors made up the result. Mr. Huston asked them if 
they thought it correct, and one of them said not. The Clerk said he should 
not sign their adding up. The Clerk said he should not consider the last 
adding up as correct as the first. I saw no record books. We used to have 
a ward book. There was an error in Mr. Way's name of four more votes 
in the last adding up. There was an error in Dr. Streeter's vote ; he 
got over 200 votes by the first count, and about 180 by the last. The 
three Inspectors had 310 votes by the first count, but the last count gave 
two Inspectors 208 votes. The paper was not much blotted ; the figures 
were imperfectly made and pointed. In my opinion, by the last adding up 
the Councilmen were elected. I am confident the Clerk was not elected. 
The certificates were called for by the Warden, and it was stated that 
they were gone. Mr. Harmon stated that a number of the ballots were 
taken away by the boys. 

Testimony of John M. Harmon, Inspector. 

I signed certificates about 2 o'clock. After the polls closed Mr. Wiggin 
signed. The Clerk read off the votes to Mr. Wiggin. Mr. Huston looked 
over a column and said he was not confident they were correct, and wanted 
to look over and count again. The Clerk told him he might count the 
votes. I told him he could not do that as a portion of the ballots were miss- 
ing. Mr. Gragg read the Clerk's figures, and the first column proved cor- 
rect. On the second column the Clerk was asked about two figures, — if 
they meant eleven or two ones. The Clerk looked and hesitated, and told 
him he did not know he had any thing to do with it. When Mr. Gragg 
came to figures he did not understand he applied to the Clerk, and Mr. 
Pennock answered, " I guess so," but gave no decided answer to the ques- 
tions. Mr. Huston asked me if I would give my signature to the count, 
and I told him I would not. I should be unwilling to swear from my own 
knowledge of the balloting, or from examining the Clerk's record, who the 
gentlemen are that were elected to the severrl Ward Offices. 

Testimony of George Wiggin, Inspector. 

After the polls closed I signed the certificates. The Clerk gave me off 
his figures. There was a question as regards twenty-one, or if it meant two 
and a one. I did not consider Mr. Pennock's answers definite. I did not 
•2 



12 

place reliance enough upon the record to indorse it. I never saw the^cer- 
tificates after they "were filled out. No declaration of the balloting has yet 
been made. We gave the result as nearly as we could. I did not con- 
sider the Clerk's manner, in deciding on his own figures, was proper for a 
person in deciding on such important matters. I cannot swear from my 
knowledge of the balloting, or on examination of the Clerk's record, what 
are the names of the gentlemen who were elected to the various Ward 
Offices. I found, on going over the Clerk's figures, that Mr. Swift had 
sixty more votes for Clerk than was given him by Mr. Pennock. 

Testimony of Henry L. Ford, Constable at Ward 3, at last 

Election. 

After the polls closed a large crowd of people were in the Hall. At a 
quarter before 7 o'clock I asked the Clerk if the returns were ready. He 
said they were. There were other envelopes ; I supposed certificates were 
inclosed in them ; they were directed to Messrs. Little, Rogers, Mayall, 
Way, Dr. Cummings, and Dr. Streeter. L delivered most of them that 
night. I was requested to go to the City Clerk's office and obtain the 
return for Mayor, Alnermen and School Committee at large. I did so, 
and the Warden declared the vote ; I then carried it back. The Warden 
told me to go and bring the Clerk back. I told him I could not arrest him. 
I do no consider that there has been any official declaration made of the 
balloting. I examined the figures of the Clerk, and found his reckoning 
against all the names incorrect except two. I foond an error of eighty 
votes in favor of Dr. Streeter that belonged to Dr. Nute. I found Mr. 
Swift was elected Clerk instead of Mr. Killian. 



13 



OPINION OF THE CITY SOLICITOR. 



(Ettg of lloibttrt). 

January 12, 1858. 
In compliance with the request of the Special Committee of the 
Common Council, to whom was referred the communication of Mr. 
William E. Huston, in regard to the recent election in Ward Three, 
I respectfully submit the following opinion, on that part of the election 
which relates to members of the Common Council. 

The 6th section of the City Charter, requires all votes given to be 
" assorted, counted, declared and registered in open Ward meeting, by 
causing the names of persons voted for, and the number of votes given 
for each, to be written in the Ward Records in words at length." 

While it is the obvious duty of all officers, acting at elections, scru- 
pulously to observe all the forms prescribed by law, and while they 
cannot disregard any of them consistently with their oaths of office, yet 
a literal compliance with all of them has not been regarded as abso- 
lutely essential to the validity of an election. There are many in- 
stances, in which elections have been held valid, in which there 
have been some departures from these rules ; but I know of no case, 
worthy of being regarded as authority, in which an election, or an 
alleged election, has been held valid, in which there existed any reason- 
able doubts as to what candidates received the majority or plurality of 
the votes cast, or in which there existed any uncertainty as to the 
result of the balloting. The law does not sanction elections which rest 
upon probabilities or conjectures. If the election has been so conduct- 
ed, that the Warden and Inspectors, (whose duty it is to receive, sort 
and count the votes,) are unable to state, with accuracy, the result of 
the balloting, the election is void. If the Committee believe, from the 



14 

testimony which has been presented, that any uncertainty exists on this 
point, I am of opinion that they should not hesitate to report that the 
election is void. 

I am of opinion, that the form in which the declaration of the vote 
was made, would not, of itself, be sufficient to vacate the election. 

I am of opinion, (guided by a precedent,) that the failure of the 
Clerk to register the votes in open Ward meeting, in the manner re- 
quired by the City Charter, will not, of itself, vacate the election. 
But if the meeting was so irregularly and loosely conducted, that the 
Clerk was unable, subsequently, to make an accurate record of the 
balloting and the proceedings at the meeting, the election, for reasons 
before stated, is void. 

There was testimony presented to the Committee, that the certificates 
of election were irregularly issued. 

A certificate is simply the evidence of an election. It forms no part 
of the election itself. A correct certificate must, from its nature, be 
subsequent to the election. Persons duly elected may be admitted to 
seats without any certificates, if they furnish other satisfactory evidence 
of their election. The improper issuing of the certificates may render 
them valueless as evidence, but will not, in my opinion, vacate the 
election. 

WILLIAM GASTON.