Municipalities—1897 No. 23, s. 55—Election of aldermen—Elections—Qualification Nov. 14, 21. on roll-Meaning of "trustee."

The qualification of a municipal elector need not be stated in the roll as "owner," "lessee" or "occupier." The term "trustee" is a sufficient description of a qualification as owner."

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1897 No. 23, ss. 55, 141, 153–Rates-Liability of owner or lessee-Payment

by incomplete security.

The acceptance of an incomplete security as payment for rates for which a receipt was issued was held to be a sufficient payment within s. 55 to entitle the ratepayer to vote, although the security was not completed until after the vote was recorded. Notices have to be given under s. 153 before an owner of property occupied by a lessee can be held to be in arrears under s. 55.

1897 No. 23, s. 55—Owner and joint owner-Cumulative vote.

An elector is entitled under s. 55 to a vote in respect of property held jointly with another elector in addition to any votes on property held by him in severalty.

THIS was a motion to make absolute a rule under s. 109 of the Municipalities Act, 1897, calling upon Aldermen Moore and Harrison to show cause why they should not be ousted of the office of aldermen of the Municipal District of Queanbeyan.

The ground upon which the rule was granted was that a number of persons mentioned in the affidavits voted at the election who were not entitled to vote at such election, that is to say-(a) Persons who were neither occupiers, lessees or owners of the property in respect of which they voted; (b) Persons who were in arrears on account of their rates at the time they voted; (c) Persons who recorded a cumulative vote in contravention of s. 55 of the Municipalities Act, 1897.

Curlewis, for the applicant. There being some doubt as to the exact contents of the roll, which has been sealed up since the election under ss. 90 and 92, I ask for an order under s. 93 for leave to unseal the roll.

THE COURT were of opinion that s. 92 did not apply to the roll, and made an order under s. 256 of the Common Law Proce

Owen J. and Cohen J.

1905.

In re JOHNSON.

dure Act for the production of a verified copy of the roll under s. 66. The copy to be sent by registered letter.

The first ground depended on the fact that it appeared from the copy of the roll that two electors, Knox and Siebert, who had recorded their votes at the election in question, were described in the qualification column of the roll as owner trustee." The evidence in support of ground (b) was that the person who usually paid the rates for the Rev. W. M. White-an elector- tendered to the Council clerk a cheque signed by one person only, instead of by two, in payment of the rates due. He pointed out that the cheque until it was signed by the second party was no good, but that the signature could be obtained later. The council clerk accepted the cheque, and gave a receipt for the amount of the rates. Further that one Mrs. Coleby, who appeared on the roll as the owner of certain property in respect of which the rates were not paid, but which was leased and occupied by the lessee, voted in respect of another property, in respect of which she was enrolled as the owner, on which the rates were paid. With regard to ground (c) it appeared that one Hincksman recorded a vote in respect of property of which he was the sole owner as well as a vote in respect of property of which he was a joint owner.

Curlewis, for the applicant. Siebert's and Knox's votes (ground (a)-) are invalid, in that their description in the qualification column, which is headed "occupier, lessee or owner," is insufficiently stated. The qualification must be stated exactly. There is no provision in s. 55 for enrolment as "trustee," or in any other words than those used in the Act. Here it means that they were trustees of some of the properties and owners of others. It must be an accurate description: Ex parte Travers (14 N.S.W. L.R. 329). The Rev. W. M. White's vote was invalid (ground (b)-) in that the alleged payment was not a payment. He was therefore in arrears. Mrs. Coleby, being in arrears of rates in respect of some of her properties, was not entitled to vote, in that an elector is not entitled to vote if he is in arrears in respect of any part of his rated property: s. 55 and Ex parte Irwin (1 S.R. 310). Then on ground (c) under s. 55 an elector admitted as an

elector for any joint property "shall not in any case be entitled to a cumulative vote." Hincksman was therefore not entitled to record a joint vote as well as a several vote in respect of property of which he was the sole owner.

COHEN, J. This limitation must be intended to apply to the joint properties only. It cannot mean that a person becoming entitled to one vote for a joint property is ipso facto disfranchised as to his separate property.

Milner Stephen, for the respondents. A trustee can be properly deemed an owner under the Municipalities Act. The term "owner" in this Act means any person having any interest in and management of ratable property, either legal or equitable : Knight v. Municipal District of Rockdale (20 N.S.W.L.R. Eq. 32). The person entitled to receive the rents is an owner within the Municipalities Act: Borough of Ashfield v. Ramsay (14 N.S.W.L.R. 217). So long as the term used identifies it with one of the statutory qualifications it is sufficient. The exact words in the statute are not necessary: Sherwin v. Whyman (L.R. 9 C.P. 243). That case is based on Townshend v. The Overseers of St. Marylebone (L.R. 7 C.P. 143); and approved in Bagley v. Butcher ([1898] 1 Q.B. 67). Then as to the Rev. W. M. White's vote, I submit there was a sufficient payment. The council accepted the cheque, even though incomplete, as payment, and issued a receipt, and the cheque was subsequently paid. Then Mrs. Coleby was not in arrears of rates as contended, because an owner only becomes liable for rates if the property is unoccupied see s. 141; or if demand has been made under s. 153. The applicant has not proved either of these conditions.

Hincksman's votes are valid because the proviso in the last part of s. 55 only prohibits an elector from exercising a cumulative vote in any case of joint occupancy or ownership, and does not affect his right of voting in respect of his several property. Further the Court will not go behind the roll on a question of ouster: Ex parte Neill (17 N.S.W.L.R. 314).

Curlewis in reply. Whyman v. Sherwin was not decided on the Municipalities Act, and does not apply. Ex parte Neill S.R., Vol. V.

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1905.

In re JOHNSON.

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In re JOHNSON.

should not be extended. When that case was decided Ex parte Drew (9 S.C.R. 169) and In re Elkington (14 S.C.R. 283) were not considered.

OWEN, J. Although this case has travelled over a great deal of ground, and counsel have raised a great many difficult questions, the matters which we have to decide are simple. The applicant objected to seven votes, two of which, namely those of Knox and Siebert, were objected to on the same grounds. It was contended that, inasmuch as they were respectively described on the municipal roll as "trustee owner," and the Act only referred to "owners, occupiers or lessees," the description was erroneous and therefore their votes invalid. It appears to me that these persons are described both as owners and trustees, and that when a person is put on the roll as a trustee that that must mean, can only mean owner, because a trustee is the person in whom the legal estate is vested and who receives the rents and profits and pays the rates in the absence of any other arrangement. To all intents and purposes he is the owner so far as the municipality is concerned, and I therefore think the votes of Knox and Siebert were rightly received.

Then objection was taken to two votes of the Rev. W. M. White. In that case his churchwarden went to the council clerk and offered a cheque in payment of the rates due. He was the person who usually paid the rates, but he pointed out that the cheque was not signed by his fellow-churchwarden, and that until it was signed it was no good. The council clerk received that cheque and gave a receipt for the amount of the rates, and as a matter of fact the cheque was afterwards properly signed and the proper amount received. It is impossible to say under these circumstances that Mr. White was in arrears.

With regard to Mrs. Coleby's two votes it was said that, with regard to one property in respect of which she appeared on the rate book as owner, certain rates were in arrears. It appears that the properties were leased, and that before the leases were entered into the arrears had accrued, but there was nothing to show that at the time when these rates became in arrears the house was unoccupied so as to render the owner primarily liable.

Again, there is nothing to show that the steps required to be taken under s. 153 were taken, in order to make the owner liable in default of payment by the occupiers. Notice had to be given, and there is nothing to show that this was done, and therefore it cannot be said that at the time of the election there were any arrears for which she was liable.

The only other point is as to the votes given by F. J. Hincksman. It appears that he was on the roll for certain properties of which he was the sole owner, and also in respect of some property to which he was entitled iointly with his brother. It was contended that, as he voted in respect of his own property, he should not have voted in respect of that held jointly with his brother. Section 55 makes it clear that he is entitled to vote in respect of property held jointly with others under certain conditions. His was the first name on the rate-book, and he was therefore properly enrolled and entitled to register a vote in respect of his joint ownership. For these reasons I think all the objections must fail, and that the application should be refused with costs.

COHEN, J. I concur.

Attorney for the applicant: L. G. B. Cadden.

Attorneys for the respondent: Metcalfe & Dangar, agents for. A. H. Garraway (Queanbeyan).

1905.

In re JOHNSON.

Owen J.