The election of John Bailey, Joshua Prentiss, Jr., William Story, James Smith, Richard Prince, Jacob "Willard, and Samuel W. Phelps, members returned from the town of Mar-blehead, was controverted by John Hooper and others, on the ground, that the said town was not entitled, by the number of ratable polls therein, to send seven representatives.1

The petition in this case was presented at the January session,2 and on the twenty-fourth of February, the committee on elections reported thereon, as follows :■—

“ That a meeting of the inhabitants of said town was holden on the thirteenth day of May last past, for the purpose of choosing representatives from said town to the general court, at which meeting, the said inhabitants did choose, at one balloting, the members returned as representatives of said town.

In this case, the assessors of the said town and the sitting members produced, before the committee, lists of all the persons in said town, whom they alleged to be ratable polls, on the *173first day of May last. The said lists contained the names of sixteen hundred and fourteen persons. Respecting ninety-seven of the said names, the committee believe there can be no dispute; and that they ought not to have been borne on the said lists; that a further number of seventy-four are persons, who, on the first day of May last, were in the service of the United States, as seamen and soldiers, and who had enlisted before that day, and the greater part of whom still continue in said service. The committee, being of opinion, that such seamen and soldiers were not ratable polls in said town of Marblehead, added their number to the number of ninety-seven, above mentioned, making in the whole one hundred and seventy-one names, to be deducted from the number claimed as aforesaid ; leaving the number of fourteen hundred and forty-three ratable polls in said town of Marble-head on the said first day of May. And inasmuch as fifteen hundred ratable polls are required by the constitution, to enable any town to choose seven representatives in this house, and as the town of Marblehead did not contain that number, the committee are unanimously of opinion, and do accordingly report, that the said supposed election of John Bailey, Joshua Prentiss, Jr., William Story, James Smith, Richard Prince, Jacob Willard, and Samuel W. Phelps, was void, and that their seats ought to be declared vacated.”

The report was read, and after debate thereon, it was ordered, that the subject subside for the present.

Mr. Willard, of Marblehead, then submitted the following order, which was assigned for consideration the next day, and in the meantime, committed to the committee on elections.1

“ Ordered, That the justices of the supreme judicial court be requested as soon as may be, to give their opinion on the following questions, namely:—

Whether citizens of the United States, belonging to any town in this commonwealth, and having families, property, or their birth or legal settlement therein, by entering the military or naval service of the United States, either as officers, non-com-*174cominissioned officers, or privates, do thereby become exempt from poll taxes ? and whether they thereupon cease to be ‘ ratable polls,’ within the intent and meaning of the constitution of this commonwealth; and whether a representation, predicated upon a competent number of ratable polls, including some of the above description, is unconstitutional? and whether the assessment and collection of taxes against such persons, provided the same be made without personal arrest, is unlawful or actionable ?”

On the twenty-fifth of February, the report on the Marble-head election was again taken up, and the consideration thereof again ordered to subside for the present.

A committee was then appointed to consider, whether any and what provision ought to be made by law, to prevent those persons from voting, who have enlisted into the military service of the United States, in towns in which such persons would not, by the constitution and laws of the state, have a right to vote, if not so enlisted.1 This committee do not appear to have made any report.

On the twenty-eighth of February, the last day of the session, the committee on elections reported, that it was not expedient to submit to the supreme judicial court the questions proposed by the member from Marblehead.2