The Committee on Elections, to whom was referred the petition of John Haigh of Lawrence that he may be given a certificate of election as representative from the fifth Esses representative district, having heard the parties, present the following report: —
The fifth Essex district consists of wards four, five and six of the city of Lawrence, and is entitled to two representatives.
The certificate made out by the mayor and aldermen of the city of Lawrence, in accordance with section 153 of chapter 423 of the Acts of 1890, certified that in said fifth Essex district James H. *56Derbyshire of Lawrence was elected representative, and that John Haigh (petitioner) and Frank McAnally each received the same number of votes, to wit, sixteen hundred and fifty-nine (1,659.)
The committee gave a hearing to the parties, at which the petitioner appeared by counsel, and Mr. McAnally appeared in his own behalf.
From the records of the city of Lawrence it appeared that by the original returns of the ward officers John Haigh had sixteen hundred and sixty-three (1,663) votes and Frank McAnallj' sixteen hundred and fifty-two (1,652) votes for representative, and that a recount of the votes cast in that district was made by the mayor and aldermen of the city of Lawrence, and in consequence of that recount the records were amended so that the result of the election was declared to be that John Haigh and Frank McAnally each had the same number of votes, to wit, sixteen hundred and fifty-nine (1,659) each.
Several witnesses for the petitioner appeared before the committee, and their testimony, which was uncontroverted, showed that the recount of the votes for representative in this district was made in a room where other recounts were being made by the mayor and aldermen, and that some members of the board of aldermen were present in the room during the whole of this recount; that the recount for representative was made on three tables, and that at one of these tables at which the larger number of the ballots were counted, the recount was, by the tacit agreement of the candidates or their representatives present, made by four persons, two representing each candidate, counting the ballots and conducting the whole recount made at that table; and there was no alderman present or taking any part whatsoever in the recount at said table from its beginning to its end, and that the recount was made and the figures there were made up and tabulated without any supervision whatsoever on the part of any member of the board of aldermen.
There was further evidence given tending to show that in the recount certain marks upon certain ballots were treated as marks made by the voter that bore in themselves evidence sufficient to show that they were not so made and should not have been so treated.
The committee on this evidence were of the opinion that the recount purporting to have been made by the mayor and aldermen was not made by them according to the provisions of section 104 of chapter 423 of the Acts of 1890, and that the consent of the candidates to the conduct of the recount, although it might stop them from setting up such conduct as invalidating the recount, yet was *57not sufficient to warrant the board of aldermen in disregarding the requirements of the statute, and that the recount was invalid; that, while the presence and consent of the candidates might waive any informality in the manner of conducting the recount, such consent could not substitute for the recount provided for by statute to be made by the mayor and aldermen another recount made by other-parties.
[The resolution declared that the petitioner was duly elected, and that he is entitled to a seat in the House.]
[The report of the committee was accepted, and the resolution adopted. The petitioner qualified and took his seat in the House.]
The committee were therefore of the opinion that the circumstances were such as to call for a recount of the votes by the committee, and a recount was accordingly made by the committee with the result that the petitioner, John Haigh, was found to have polled sixteen hundred and sixty-seven (1,667) votes and Prank McAnally sixteen hundred and fifty-eight (1,658) votes.
The committee accordingly report the accompanying resolution.