The election of Edward Wade, the last chosen of the three members returned from the town of Malden, was controverted

by John Sprague and others, on the ground, that the said town was not entitled, by the number of ratable polls therein, to send three representatives.3

The committee on elections reported as follows4:—

“ It appeared in evidence, and was admitted by the parties, that on the first day of May last, there was not a sufficient number of ratable polls, in the town of Malden, to entitle said town to three members in this house : but, that on the 12th day of November last, there was a sufficient number of ratable polls, in the town of Malden, to entitle said town to three members.

The petitioners contend, that, whereas the meaning of the words < ratable polls,’ in the constitution, must be established and defined by the tax act last passed ; and whereas the last tax act passed requires the assessors to make the valuation on all property, as it may be holden or owned, on the first day of May, and to tax all polls, who may be over the age of sixteen years, on the first day of May; that it is not competent for towns to take the ratable polls, as a basis of representation, at any other time, than on the first day of May.

The sitting member contends, that the constitution can only be rationally understood to refer to the number of ratable *294polls on the day on which the election takes place, and that the tax act is only to be regarded as defining what are the qualifications of a ratable poll, on the day of the election.

This construction of the constitution seems to be recognized by a part of the 7th section of the tax act, last passed, wherein provision is made for the taking of a ‘ new valuation,’ ‘ at any time of the year’ which towns ‘ may determine to be necessary, at a legal meeting, to be warned for that purpose.’

The committee are of opinion, that the number of representatives is to be determined by the number of ratable polls, on the day of election ; and accordingly report, that Edward Wade, the sitting member from the town of Malden, is entitled to a seat.”

The report was agreed to.1