(4.) If there is no valid nomination, the retiring councillors Election of shall be deemed to be re-elected. [The effect of section 8 of 22 Vict. c. 35 (1859), and section 1 of 38 & 39 Vict. c. 40, is preserved in this clause. Where the mayor of a borough has, under section 1, subsection 3, 38 & 39 Vict. c. 40, improperly allowed an objection to a nomination paper, the court has jurisdiction under 35 & 35 Vict. c. 60, s. 12, to entertain a case questioning the validity of the election. Budge v. Andrews (3 C. P. D., 510)]. Councillors, uncontested 57.-If an election of councillors is not contested, the return- Publication of ing officer shall publish a list of the persons elected not later election. than eleven o'clock in the morning on the day of election. [The effect of section 8 of 22 Vict. c. 35 (1859) is preserved in this clause]. Mode of con 58.—(1.) If an election of councillors is contested, the poll dusting pola shall, as far as circumstances admit, be conducted as the poll at a contested parliamentary election is by the Ballot Act, 1872,* * Section 20 of the Act referred to contains the directions as follows:-"The poll at every contested municipal election shall, so far as circumstances admit, be conducted in the manner in which the poll is by this Act directed to be conducted at a contested parliamentary election, and, subject to the modifications expressed in the schedules annexed hereto, such provisions of this Act and of the said schedules as relate to or are concerned with a poll at a parliamentary election, shall apply to a poll at a contested municipal election: Provided as follows: (1.) The term 'returning officer' shall mean the mayor or other officer who, under the law relating to municipal elections, presides at such elections: (2.) The term 'petition questioning the election or return' shall mean any proceeding in which a municipal election can be questioned: (3.) The mayor shall provide everything which in the case of a parliamentary election is required to be provided by the returning officer for the purpose of a poll: (4.) All expenses shall be defrayed in manner provided by law with respect to the expenses of a municipal election: (5.) No return shall be made to the Clerk of the Crown in Chancery: (6.) Nothing in this Act shall be deemed to authorize the appointment of any agents of a candidate in a municipal election, but if in the case of a municipal election any agent of a candidate is appointed, and a notice in writing of such appointment is given to the returning officer, the provisions of this Act with respect to agents of candidates shall, so far as respects such agent, apply in the case of that election (7.) The provisions of this Act with respect to (a.) The voting of a returning officer; and (b.) The use of a room for taking a poll; and (c.) The right to vote of persons whose names are on the register of voters; shall not apply in the case of a municipal election. A municipal election shall, except in so far as relates to the taking of the poll in the event of its being contested, be conducted in the manner in which it would have been conducted if this Act had not passed." Rule 64 for Municipal Elections, contained in Part II. of the First Schedule of the borough, or, in the case of an election for the ward of a borough, the ward (b.) All ballot papers and other documents which, in the case of a parliamentary contested election. Election of directed to be conducted, and, subject to the modifications expressed in Part III. of the Third Schedule, and to the other provisions of this Act, the provisions of the Ballot Act, 1872, relating to a poll at a parliamentary election (including the provisions relating to the duties of the returning officer after the close of the poll)* shall apply to a poll at an election of councillors. [The modifications of the Ballot Act in its application to municipal elections referred to above are contained in Part III. of the Third Schedule, as follows: 1. The provisions of the Ballot Act, 1872, with respect to the voting of a returning officer,† the use of a room for taking a poll, and the right to vote of persons whose names are on the register of voters§, and Rules 16 and 19 in the schedule to that Act, shall not apply in the case of a municipal election. 2. The mayor shall at least four days before the day of election give public notice of the situation, division, and allotment of polling places for taking the poll at the election, and of the descriptions of the persons entitled to vote thereat, and at the several polling stations. 3. The mayor shall provide everything which in the case of a parliamentary election is required to be provided by the returning officer for the purpose of a poll, and shall appoint officers for taking the poll and counting the votes. 4. The mayor shall furnish every polling station with such number of compartments in which the voters can mark their votes screened from observation and furnish each presiding officer with such number of ballot papers, as in the judgment of the mayor may be necessary for effectually taking the poll at the election. 5. All expenses of the election shall be defrayed in manner by this Act provided. 6. No return shall be made to the Clerk of the Crown in Chancery]. [It has been held that although a (parliamentary or) municipal election will be void by the common law of Parliament, if it be so conducted that either there be no such election by the constituency at all, or it be not really conducted under the subsisting election law, which is now an election by ballot; yet if there be no reasonable ground to believe that a majority of the electors may (a.) An order of the county court having jurisdiction in the borough, or any part thereof, or of any tribunal in which a municipal election is questioned, shall be substituted for an order of the House of Commons, or of one of Her Majesty's superior courts; but an appeal from such county court may be had in like manner as in other cases in such county court; (b.) The regulations for the inspection of documents and the fees for the supply of copies of documents of which copies are directed to be supplied, shall be prescribed by the council of the borough with the consent of one of Her Majesty's Principal Secretaries of State; and, subject as aforesaid, the town clerk, in respect of the custody and destruction of the ballot papers and other documents coming into his possession in pursuance of this Act, shall be subject to the directions of the council of the borough. (c.) Nothing in this schedule with respect to the day of the poll shall apply to a municipal election." Rules 31 to 38, Part I. of the First Schedule to the Act prescribe these duties. Sections 6, 16 & 17 of 35 & 36 Vict. c. 33. Section 7 These two rules are as follows:-" 16. Each polling station shall be furnished with such number of compartments, in which the voters can mark their votes screened from observation, as the returning officer thinks necessary, so that at least one compartment be provided for every one hundred and fifty electors entitled to vote at such polling station.-19. The returning officer shall give public notice of the situation of polling stations and the description of voters entitled to vote at each station, and of the mode in which electors are to vote." have been prevented from voting in favour of the candidate they preferred, Election of and if the election be substantially an election by ballot, the election will not Councillors. be void by the common law of Parliament, notwithstanding there may have been some mistake or misconduct in the use of the machinery in the Ballot Act. (This case, it may be remarked, also decides a number of points of some interest under the Ballot Act, equally applicable to parliamentary and municipal elections, with respect to the marking of papers, voter's signature, &c.)— Woodward v. Sarsons (44 L.J.R., N.S., C.P., 293. See also note to sect. 35, at page 51]. (2.) Every person entitled to vote may vote for any number of candidates not exceeding the number of vacancies. (3.) The poll shall commence at nine [now eight] o'clock in the forenoon and close at four [now eight] o'clock in the afternoon of the same day.* (4.) But if one hour elapses during which no vote is tendered, and the returning officer has not received notice that any person has within that hour been prevented from coming to the poll by any riot, violence, or other unlawful means, the returning officer may, if he thinks fit, close the poll at any time before four o'clock. (5.) Where an equality of votes is found to exist between any candidates, and the addition of a vote would entitle any of those candidates to be declared elected, the returning officer, whether entitled or not to vote in the first instance, may give such additional vote by word of mouth or in writing. [Amendments have been made in the drafting of this subsection to meet omitted cases, and give effect to the obvious intention of the Legislature]. (6.) Nothing in the Ballot Act, 1872, as applied by this Act, shall be deemed to authorize the appointment of any agents of a candidate at a municipal election; but if, in the case of a municipal election, an agent of a candidate is appointed, and notice in writing of the appointment is given to the returning officer, one clear day before the polling day, then the provisions of the Ballot Act, 1872, with respect to agents of candidates,† shall, as far as regards that agent, apply in the case of that election. [The effect of sections 32 and 35 of the Act of 1835, section 18 of 7 Will. 4 and 1 Vict. c. 78 (1837), and section 20 (particularly) of 35 & 36 Vict. c. 33 (which Act is referred to generally), is preserved in this clause]. which may be 59.-(1.) At an election of councillors, the presiding officer Questions shall, if required by two burgesses, or by a candidate or his put to voters. By the Elections (Hours of Poll) Act, 1884-47 & 48 Vict. c. 34--the poll was required to commence at eight o'clock in the forenoon and continue until eight o'clock in the afternoon. This Act was repealed, but its principles re-enacted by 48 Vict. c. 10, Elections (Hours of Poll) Act, 1885. See Appendix. Public notice of the result is to be given by the returning officer as soon as possible.—Rule 44, Part I., First Schedule of Ballot Act, 1872. + See particularly hereon Rules 51 to 55 of Part I. of the First Schedule of the Ballot Act, 1872. Election of Election of Time and mode of election of aldermen. agent, put to any person offering to vote, at the time of presenting himself to vote, but not afterwards, the following questions, or either of them : (a.) Are you the person enrolled in the burgess [or ward] roll now in force for this borough [or ward] as follows [read the whole entry from the roll] ? (b.) Have you already voted at the present election [add, in case of an election for several wards, in this or any other ward]? (2.) The vote of a person required to answer either of these questions shall not be received until he has answered it. (3.) If any person wilfully makes a false answer thereto he shall be guilty of a misdemeanour. (4.) Save as by this Act authorized, no inquiry shall be permitted at an election as to the right of any person to vote. [The effect of section 34 of the Act of 1835 is preserved in this clause. It is perhaps worth while observing that the strict prohibition against putting any but the three questions given above prevents any inquiry into a voter's change or loss of qualification. Once on the burgess roll a person is entitled to vote during the year in which that roll is in force, whether he does or does not possess the same or any qualification. "Where the majority of electors vote for a disqualified person in ignorance of the fact of disqualification, the election may be void or voidable, or, in the latter case, may be capable of being made good, according to the nature of the disqualification. The objection may require ulterior proceedings to be taken before some competent tribunal in order to be made available, or it may be such as to place the elected candidate on the same footing as if he had never existed, and the votes for him were a nullity; but in no such case are the electors who vote for him deprived of their votes, if the fact becomes known and is declared while the election is still incomplete; they may then instantly proceed to vote for another candidate. If it be disclosed afterwards, the party elected may be ousted and the election declared void, but the candidate in the minority will not be deemed ipso facto elected. But when an elector before voting receives due notice that a particular candidate is disqualified, and yet will do nothing but tender his vote for him, he must be taken as voluntarily abstaining from exercising his franchise, and as violating his duty of assisting at the election "*]. Election of Aldermen. 60.-(1.) The ordinary day of election of aldermen shall be the 9th of November, and the election shall be held at the quarterly meeting of the council. (2.) The election shall be held immediately after the election of the mayor, or, if there is a sheriff, the appointment of the sheriff. (3.)An outgoing alderman,although mayor elect,shall not vote. [An alderman (in 1887) was elected mayor. Having made the usual declaration he then voted in the election of aldermen. Held that his vote was invalid, inasmuch as when he voted he had not ceased to be an outgoing alderman." Hounsell v. Suttill (Bridport Election), 19 Q B.D. 498]. 66 (4.) Every person entitled to vote may vote for any number of persons not exceeding the number of vacancies, by signing and personally delivering at the meeting to the chairman a voting * See "Grant on Corporations," page 399. paper containing the surnames and other names and places of Election of abode and descriptions of the persons for whom he votes.* [In a case decided in Feb., 1861, the initial "W" instead of "William," was held to be a misnomer cured by s. 142 of 5 & 6 Will. 4, c. 76. It was decided as not necessary that the Christian name should be written at full length; but if such a contraction as is ordinarily used for the Christian name be written, and intended to designate such, it would be sufficient.-Reg. v. Bradley (30 L. J., Q. B., 180.) In a nomination paper at an election for town councillors of a borough under the Municipal Elections Act, 1875, the name of a candidate which was Robert Vicars Mather was inserted thus-"Robert V. Mather": Held, not such a statement of "the surname and other names of the persons nominated" as to satisfy the requirements of section 1 of the Act, and the form given in the Second Schedule, and that the inaccuracy was not cured by section 142 of 6 & 7 Will. 4, c. 76. The Municipal Elections Act, 1875, incorporated the former Act in these words, "This Act shall so far as is consistent with the tenor thereof, be construed as one with the Act 5 & 6 Will. 4, c. 76, and the Acts amending the same." It does not say that the provision in s. 142 of the former Act shall be extended to the latter Act, but merely that it shall be construed as one with it. These terms were held not to extend the operation of the amending section in the earlier Act to a document which had no existence then and therefore could not have been in contemplation of the Legislature. Regina v. Bradley and Regina v. Pienty (L. R., Q. B., 4. 347, (1869), cited and overruled by Mather v. Brown (1 C. P. D., 596) (1876)]. (5.) The chairman, as soon as all the voting papers have been delivered to him, shall openly produce and read them, or cause them to be read, and then deliver them to the town clerk to be kept for twelve months. (6.) In case of equality of votes the chairman, although as an outgoing alderman or otherwise not entitled to vote in the first instance, shall have the casting vote. (7.) The persons, not exceeding the number of vacancies, who have the greatest number of votes, shall be declared by the chairman to be, and thereupon shall be, elected. [The effect of section 25 of the Act of 1835, section 14 of 7 Will. 4 and 1 Vict. c. 78 (1837) and section 13 of 16 & 17 Vict. c. 79 (1853), is preserved in this clause]. Election of Mayor. Aldermen. Election of 61.-(1.) The ordinary day of election of mayort shall be Time and mode the ninth of November. * At an election of aldermen under this section in 1883 a voting paper was made out in the name of one person and signed by another. The Election Court decided that the ambiguity did not invalidate the vote, and that evidence could be received of how the mistake arose. The decision was upheld on appeal to the Q.B. Division. See Summers v. Moorhouse, 13 Q.B.D. 388. See also Reg. v. Mayor of Wilton, 34 W.R. 273, which case arose, in 1886, out of procedure under this section. The very generally used designation of "Ex-mayor," is almost universally supposed to be confined to the immediate past mayor, but it would be difficult to logi cally dispute the claim of any person, who has held the office of mayor, to the title, as the following quotation from Littré will show:-Ex.: Particule qui se joint par le trait d'union à certains mots pour exprimer l'état ou la position antérieure d'une personne; un ex-ministre, un ex-député. Etym.: Lat.: ex; Grec.: éέ, hors. The fact that the term "ex-mayor " is nowhere used in this Act would also seem to bear out the foregoing conclusion. of election of mayor. |