returned the ballot boxes without any form of return. On 1900. 12th December an application was made for a recount Argument. and the same day a summons and notice were served on the returning officer. On 14th December the returning officer signed the return on file and sent it to the Clerk of the Executive Council. On 16th December the clerk advertised the return in the Gazette. On 16th December the County Court Judge gave a certificate to the returning officer of the result of the recount. On 28th February the returning officer made his second return, and on 3rd March the Clerk of the Executive Council published the return in the Gazette. The petition was filed on 15th January. It is claimed that the petition was not filed within the specified time, i. e., within 30 days after the publication of the return: Controverted Elections. Act, s. 18. The only return is the one to be made after the recount; the petition should have been filed within 30 days after the last return. There was no return possible before the time for the recount had expired. Form N, section 196, of the Act shows the return and ballot boxes are to be returned together after the time for the recount has expired. No notice can lawfully be published till after the return of the ballots. The first notice was a nullity, having no foundation on a proper return. The election was still proceeding; therefore, neither the returning officer nor the Clerk of the Council had any right to act. If the recount had made the votes even, the returning officer would have had to give a casting vote. If the recount had changed the result, then this petition would have turned out to be a petition against the defeated candidate. There might have been two opposing returns and two petitions. Provisions as to time are always obligatory: Baker v. Palmer, 8 Q. B. D. 10. As to the difference between a nullity and an irregularity: Hewgill v. Chadwick, 18 P. R. 364.

1900.

J. S. Ewart, Q. C., and C. P. Wilson, for the petitionArgument. ers. If the appellant's contention is correct, there could The second return was made over

be no petition at all.
two months after the first return. After the petition had
been filed and the time had expired, then the second re-
turn was made. If no second return had been made,
where would the petitioner have been? How could the
petitioner expect a second return to be made? When the
second return was made the returning officer had long
since parted with all his papers, and was functus officio.
When the act objected to is one on which a further pro-
ceeding can be taken it may not be treated as a nullity,
but must be moved against. The elected member had
the certificate under section 198; on that he could take.
his seat. The first return is necessarily acted on. Then,
once it is acted on, the returning officer could not validly
make another return without interfering with what is out
of his power to interfere with. If arbitrators, without
taking evidence, make an award, they could not after-
wards make another. Their powers are discharged by
the first award. Under section 184 a declaration of elec
tion shall be made the day after election; that is the de-
claration that counts unless the recount makes a change.
Unless there is a change on the recount, the first declara-
tion counts. Only in case of a change on the recount is a
new declaration required: s. 196. The respondent to
the petition, after taking the certificate and his seat, is
not in a position to object that the return is a nullity.

J. A. M. Aikins, Q. C., in reply. Officers here are to act ministerially, as provided by the statute, and their acting otherwise than as so provided creates only a nullity. The declaration under section 184 is not the final return. It is only the returning officer's method of notifying the public as to whom he means to return, the object being to let the parties who wished for a recount get it. The advertisement is on December 16th, though the return

No writ can be re

1900.

day of the writ is December 18th. turned before its return day: Archbold's Pr. 815; Lewis Argument. v. Holmes, 10 Q. B. 896. The first return did not make the returning officer functus officio. His statutory duties existed till the recount was finished and he had obtained the County Judge's certificate of the return. Therefore, he could make the second return.

DUBUC, J.—No precedent of a similar case to this has been found in the reported judicial decisions.

There are points to be considered respecting the manner in which the returning officer and the Clerk of the Executive Council fulfilled, or assumed to fulfill, their respective duties, under the provisions of the statute.

In the first place, when the returning officer declared the respondent elected, on the 8th December, his declaration was quite regular under section 184 of The Election Act, but his return to the Clerk of the Executive Council, on the 14th December, after he had received notice of the recount, was certainly premature and ought not to have been made at that time.

In the second place, the Clerk of the Executive Council, when he received the said return, acted clearly within the scope of his duties in publishing the notice of the elec tion in the next number of the Manitoba Gazette, issued on the 16th December, and, in fact, as the return appeared on its face to be regular, he was bound, under section 200 of The Election Act, to make the publication in the Manitoba Gazette of the 16th December.

Now, after the recount, and after receiving the Judge's certificate on the 16th December, the returning officer, on the assumption that he had not made a previous return, or that such previous return was null and void, was bound, under section 196 of the Act, to make his return to the Clerk of the Executive Council within ten days after receiving the Judge's certificate. The word "shall" is

1900.

DUBUC, J.

used in the section. So that, if he had to make another Judgment. return, his duty was to make it on or before the 26th December. But he seems to have disregarded that requirement of the statute and did not make any other return until the 28th February. If, therefore, the first return is to be deemed irregular, or, as is contended, absolutely void, because it was made two days before the Judge's certificate was given to the returning officer, how can we hold that the second return is regular and valid when it was made more than two months after the time prescribed by statute? The fact that the one was made before the proceedings of the recount were terminated, and that the other was made after everything was complete, does not, in my mind, change the nature of the irregularity such be considered irregular as both were made outside of the time fixed by the statutory provisions.

if

If, after the Judge had certified the result of the recount, the returning officer had made his second return within the time prescribed, i. e., on or before the 26th December, it might have been embarrassing to the petitioners to decide against which return their petition ought to have been filed, or they might have found it advisable to file it against both returns; but, as there was only one return made by the returning officer, and acted upon by the Clerk of the Executive Council, when the thirty days for the filing of the petition were about to expire, as the petitioners had no notice or intimation at the time that another return and another publication were to be made; and, as the return appeared on its face to be correct and regular, I think that the petitioners, if they intended to question the return of the member-elect, had no other alternative but to file their petition against the return which was the only one existing at the time.

In my opinion, the appeal should be dismissed with costs, to be costs in the matter to the petitioners in any event.

1900.

BAIN, J.-It appears that the returning officer declared the respondent elected on the 8th of December, the day Judgment. after the polling, and that on the 12th of December an BAIN, J. application was made to the County Court Judge for a re'count of the ballots. The recount was duly proceeded with, and on the 16th of December the Judge certified the result of the recount to the returning officer. Section 196 of The Manitoba Election Act provides "that the returning officer, within ten days after he has declared the result of the election, unless he has received from the Judge notice of a recount, in which case, after he receives a certificate from the Judge of the result of such recount, shall make his return to the Clerk of the Executive Council in the form in Schedule N to this Act." The returning officer, however, although he was served with the notice of the recount and was summoned to attend thereon, made his return to the Clerk of the Executive Council on the 14th of December, before the recount was completed and before he had received from the Judge a certificate of the result of the recount, and the Clerk of the Executive Council having received the return, which was in due form, published the name of the candidate elected in the next number of the Manitoba Gazette, on the 16th of December, and sent him the certificate of his election, as prescribed in sections 198 and 200.

The recount, it appears, still left the majority of votes. with the respondent, and on the 28th of February, more than a month after the petition had been filed, the returning officer made another return to the Clerk of the Council, and the clerk published this return in the Gazette of the 3rd of March.

The petition, which complains of the undue election of the respondent, was filed on the 15th of January, 1900. Among the preliminary objections that were taken to the petition by the respondent and that were overruled by the