If the signature be omitted, the voting-paper will be bad. (1) The signature should be the voter's usual signature, and it would be no valid objection that the Christian name is denoted by an initial letter. (2) The provision in 11 & 12 Vict. c. 63, s. 24, and schedule A., Filling up ante, p. 45, requiring the voting-papers to be filled by the re- voting-papers. turning officer with the number of votes to which each voter is 11 & 12 Vict. entitled, is directory only, and not compulsory. (3) Therefore, c. 63, s. 24. if there should be any mistake in the number of votes assigned in the voting-papers, or if none be assigned, the returning officer, when he reckons up the votes, will have to assign to each voter the proper number of votes to which he is entitled. But, semble, per Blackburn and Mellor, JJ., the chairman might be liable to a penalty, under sect. 28, for omitting to fill up the voting-papers in the form provided by the Act. Where certain persons who took an active part on behalf of Filling up some of the candidates went to the houses of voters who were voting-papers. marksmen, to assist in filling up the voting-papers, and having irregularly. obtained the express or implied consent of voters or members of their families, filled up the papers with the proper names and marks of the voters, and put their own names as attesting witnesses, without obtaining the actual signatures, or marks of the parties themselves, it was held, that this did not constitute the offence of forgery at common law: sed quære, whether the irregularity amounted to an indictable misdemeanor. The defendants having been indicted separately, Crompton, J., on the application of their counsel, and with the consent of the counsel for the prosecution, permitted all the cases to be tried. (4) 21 & 22 Vict. If any person fabricates, in whole or in part, alters, defaces, Penalty for destroys, abstracts, or purloins any voting-paper, or personates forging, &c., any person entitled to vote in pursuance of the Public Health voting-papers. Act, 1848, or the Local Government Act, 1858, or falsely as- c. 98, s. 13. sumes to act in the name or on behalf of any person so entitled to vote, or interrupts the distribution of any voting-papers, or distributes the same under a false pretence of being lawfully authorized so to do, he shall for every such offence be liable, on conviction before two justices, to be imprisoned in the common gaol or house of correction, for any period not exceeding three months, with or without hard labour. The distinction between a gaol and house of correction is now abolished by 28 & 29 Vict. c. 126, s. 56. See Glen's Prison Acts, 1865. The chairman is to cause the voting-papers to be collected Collection of (1) Reg. v. Tart, 28 L. J. Q. B. 173; 5 Jur. (N. s.) 679; 32 L. T. 314. (2) Reg. v. Avery, 18 Q. B. 576; 21 L. J. Q. B. 429; 17 Jur. 272. (3) Reg. v. Lockhouse and Wilson, 14 L. T. 359; 7 B. & S. 447. S. C. Reg. v. Lofthouse, 35 L. J. Q. B. 145; L. R. 1 Q. B. 433; 12 Jur. (N. S.) 619. (4) Reg. v. Hartshorn, 6 Cox, Crim. Cas. 395. voting-papers. 11 & 12 Vict. c. 63, s. 26. Collection of on the day of election by the appointed persons; but no paper voting-papers. is to be received or admitted unless it be delivered at the 11 & 12 Vict. address or residence of the voter, nor unless it be collected by c. 63, s. 26. the appointed persons, except in the case of a person qualified to vote who shall not have received a voting-paper. Such person, on application to the chairman before the day of election, is entitled to receive a voting-paper from him, and to fill it up in his presence, and then and there to deliver it to him. In case any voting-paper duly delivered shall not have been collected through any default of the chairman or of the persons appointed to collect the voting-papers, the voter in person may deliver it to the chairman before twelve o'clock at noon on the day of election, or the first day appointed for the examination and casting up of the votes. Examination and casting up the votes. Ib. s. 27. Who to be deemed elected. Ib. Notice of election. Ib. On the day immediately following the day of election, and on so many days immediately succeeding as may be necessary, the chairman is to attend at the office of the Local Board and ascertain the validity of the votes by an examination of the rate-books and such other books and documents as he may think necessary, and by examining such persons as he may think fit. After having so done, he is to cast up such of the votes as he shall find to be valid, and to have been duly given, collected, or received, and ascertain the number of such votes for each candidate. The candidates to the number to be elected, who, being duly qualified, shall have obtained the greatest number of votes, are to be deemed duly elected, and certified as such by the chairman under his hand. The provision that the chairman is to attend at the office of the Local Board is, per Lord Campbell, C. J., merely directory. (1) If from any cause it should be impracticable for the chairman to ascertain the result of the election on the day when the votes are to be cast up, he should nevertheless open the proceedings on that day, and then adjourn them to the next day. He should take care that the proceedings are commenced in due form on the proper day, and are duly adjourned; and it would be well that he should give notice beforehand of the intended adjournment. After the result of the election has been ascertained, the chairman is to send to each person elected a notice thereof, and to cause a list to be made containing the names of the candidates, together with, in case of a contest, the number of votes given for each, and the names of the persons elected, which list he is to sign and certify and deliver, together with the nomination and voting papers which he shall have received, to the Local Board at their next meeting, who are to cause the same to be deposited in their office, and during office hours thereat kept open to public inspection, together with all other (1) Reg. v. Cross, 16 J. P. 215. documents relating to the election, for six months after the Publication of election shall have taken place, without fee or reward. The list of elected chairman is also to cause such list to be printed, and copies of members. it to be affixed at the usual places for affixing notices of paro- c. 63, s. 27. 11 & 12 Vict. chial business (see ante, p. 44) within the parts for which the election shall have been made. The duties of the chairman or returning officer at the election Duties of are not merely ministerial, but judicial, and therefore his certi- returning ficate of the return of the candidates elected is conclusive as officer. far as the validity of the votes is concerned, and no scrutiny of the votes can be held under a quo warranto. (1) But in a later case a rule nisi was granted calling on a Mr. Frost to show cause why an information in the nature of a quo warranto should not be exhibited against him requiring him to show by what authority he assumed to exercise the office of Commissioner under the Public Health Act, 1848, for the city of Ely; it was there contended that the office being a public office, the quo warranto was the proper remedy, and Darley v. The Queen, (2) and Reg. v. St. Martin in the Fields, (3) were cited. (4) In Reg. v. Robinson (5) such an information was granted. A quo warranto information will not be granted at the instance of an individual against persons acting as a Local Board of Health, constituted under 11 and 12 Vict. c. 63, and 21 and 22 Vict c. 98. (6) In such a case the Court would require the intervention of the Attorney-General. Again, the mere knowledge on the part of the voters that a candidate is disqualified will not cause the votes given for him to be thrown away, so as to entitle the next on the poll to be held duly elected; that knowledge on the part of the voters, in order to have that effect, must be not only of the fact constituting the disqualification, but also of the law that such fact does disqualify. This, however, was held with reference to the election of Town Councillors, and is not a decision upon the 11 and 12 Vict. c. 63; per Blackburn, J. I therefore think that the candidate in the minority cannot be considered as duly elected, but that the election must be held over again. Reg. v. Tewkesbury, Mayor, &c. of. (7) On a rule for a quo warranto against a Commissioner, under a Local Improvement Act, it was held: 1. That a person who is owner of rateable property in the town is qualified to be a relator. 2. That it will not be presumed that the votes given for the candidate next highest on the poll were not legal votes, but the contrary must be shown. 3. That if the agent of a 1 Duties of re- candidate agrees to pay the rates of voters, but they are not turning officer. actually paid before voting, the votes are bad if the Act says voters must have paid their rates before voting. (1) Penalty for neglect or misconduct of returning officer. 11 & 12 Vict. c. 63, s. 28. A relator in a quo warranto rule, who has acquiesced in and has adopted the mode of voting, to which he afterwards objects, is disqualified for applying for such a rule. (2) Where a person who is elected to a municipal corporation office is disqualified, and another claims the office as having the only legal votes, the person so elected cannot, by merely resigning his office, deprive the other person of his right to the advantage which a judgment of ouster upon a quo warranto would give him. He is therefore entitled to file the information, for without a disclaimer on the part of the person returned as elected, he would not be entitled to a mandamus to be admitted to the office. (3) The duties of the chairman not being merely ministerial, he should ascertain what candidates are duly qualified, and return the duly qualified candidates who have the majority of votes at the election. (4) A returning officer at an election cannot return himself, for it is a maxim of law that no one is permitted to be a judge in his own cause; per Lord Campbell, C. J., "that maxim has been acted upon from time immemorial, and contains the principle within it, that a returning officer cannot, at the election at which he presides, return himself; therefore it has been held that the mayor of a municipal corporation who presides at an election of town councillors cannot return himself, and his election is void. (5) But the mayor is only disqualified from being returning officer, and not from being a candidate. (6) If the term of office of the chairman should be about to expire, and if he should be a candidate for re-election, that would appear to be a sufficient cause to render him unable to conduct the election, so as to enable the Local Board to appoint some other person, as, for instance, the clerk, as the returning officer. If the chairman or other person charged with taking, collecting, or returning the votes at the election, neglect or refuse to comply with any of the provisions of the Act in that behalf, he is liable to a penalty not exceeding £50; and any person employed in the election by the chairman or other person, guilty of any such neglect or refusal, is liable to a penalty not exceeding £5. In Somerhill v. Coley (7) the Court were clear that the penal (1) Reg. v. Briggs, 29 J. P. 423. (3) Reg. v. Blizard, 15 L. T. 242; (4) Reg. v. St. Pancras, 7 E. & B. 954; 26 L. J. Q. B. 312. (5) Reg. v. Owens, 33 L. T. 257. (6) Reg. v. White, 2 W. N. 209; 36 L. J. Q. B. 267. (7) 32 J. P. 324. provision in 11 and 12 Vict. c. 63, s. 28, only applied to neg- Penalty for lect or disregard of clear and undoubted directions, not mere neglect or mistakes upon doubtful points. Proceedings for the recovery of the penalty will be taken before justices under 11 and 12 Officer. Vict. c. 63, s. 129. misconduct of Returning II & 12 Vict. A chairman of a Local Board of Health was charged, under c. 63, s. 28. 11 and 12 Vict. c. 63, s. 28, with neglecting to deliver the voting-papers to the Local Board at their meeting, pursuant to sect. 27 of the Act. The prosecutor, a member of the Board, had not been a candidate at the election, and the persons returned at the election were properly elected; but as the prosecutor had not obtained the consent of the AttorneyGeneral or Local Board, under sect. 133, to prosecute, he was held not to be a party aggrieved, and the justices had therefore no jurisdiction to convict. (1) Though there may be any defect in the selection by the town Proceedings council, or in the election of owners and ratepayers of members of Board not to be invalid of Local Boards of Health, all proceedings of the Board and of by reason of any person acting as a member or under the authority of the defect in Board, will be as valid and effectual as if no such defect had election. ever existed. Ib. pany de If any person nominated, or any person on his behalf, give Agent of at least one clear day's notice in writing to the returning officer, candidate before the delivery or collection of the voting-papers, of an may accomintention to send some agent to accompany the deliverer or liverer or collector of the papers, the returning officer must make his collector of arrangements so as to enable the person appointed by him to voting papers. be so accompanied. The agent must not, however, interfere 21 & 22 Vict. in any respect in the delivery or collection of the voting. c. 98, s. 24. papers. Ib. Any casual vacancy occurring by death, resignation, dis- Casual qualification, or otherwise, in the Local Board, may be filled vacancies. up within one month by the Local Board out of qualified persons. (2) The term of office of the new member in such case is limited to the same time as the vacating member would have retained the office if no vacancy had occurred. Whether or not the Board will fill up the vacancy will depend upon themselves; but in any event the owners and ratepayers have no power to elect a member to fill a vacancy until the time for the annual election arrives. Board. In the case of districts not consisting of boroughs or towns First meeting under the jurisdiction of Improvement Commissioners, the first of Local meeting is to be held on a day not being more than ten days Ib. after the election of the Local Board, and at such place as the returning officer may, by notice sent by post or delivered to each member of the Board, appoint. The necessary expenses attendant upon the election, and such reasonable remuneration to returning officers and other (1) Reg. v. Blanshard, 30 J. P. 280. (2) See Reg. v. Griffiths, post, p. 58. |