SUPREME COURT.

Evening Star, Volume VIII, Issue 2271, 17 August 1870, Page 2

SUPREME COURT.

IN BANCO, Tins Day. (Before Mr Justice Chapman.) BEOIXA V. BAULEV. Mr Macassey moved for a rule nwi, calling upon Mr Benjamin Barley to show cause why an information in the nature of a writ quo warranto should not be filled against him. The object of the proceeding would be to test the validity of Mr Bagley’s election to the City Council as Councillor for Bell Ward. In support of the present application a number of affidavits had been filed, and the facts they disclosed might be briefly stated as follows : —On the Ist August last an election was held for the return of a person to servo in the City ("ouncil for Bell Ward. There were two candidates—Mr Bagley and the present relator, Mr William Woodland. At the close of the election it was declared that Mr Bagley had received 211 votes, and Mr Woodland 210 ; the consequence necessarily was that Mr Bagley was declared elected by the somewhat narrow majority of one. The present application was based on the ground that the Returning Officer had improperly rejected as informal two votes, recorded in favor of Mr Woodland. The learned counsel then read the 27th section of the Otago Municipal Corporations Ordinance, dwelling upon that portion of it which 2>rovidcs that “the presiding officer, or other person as the case may he, shall furnish to the said voter a white printed voting paper, marked with the initials of the presiding councilor, or otherpersouastbe case may be, containing the Christian and surname of each candidate, and no other matter or thing; and there shall be provided Separate apartments or places into which the voter shall immediately retire, and there, alone and in private, and without interruption, make a cross within the square opposite the name of the candidate he wishes to be elected,” &c Upon the occasion of the election for Bell Ward, two voting papers which the present relator contended should be regarded as votes recorded in hi? favor, were rejected under these circumstances : One of the voting papers had opposite Mr Woodland’s name a cross distinctly marked in the manner provided by section 27 ; but Mr Bagley had opposite his name a figure which seemed to have originally been a cross, but which had subsequent!}' been deliberately erased, and Mr Bagley’s name scored through, indi- . eating most clearly that the vote of the ratepayer had not been recorded in favor of Mr Bagley, The ground upon which the Returning Officer rejected the vote was that

the paper should have simply a cross opposite the name of the candidate, and nothing else. He (Mr Maeassey) contended that all the Provincial Legislature intended was that the provisions of the section should be substantially complied with, and that if the voting paper indicated with sufficient clearness the manner in which the ratepayer intended to vote t> the Court would disregard any mere literal non-observance of the provisions of the Ordinance. On this point there was the case of I'orco v M'Leod, 15 C.8., N.S., in which Mr Justice Williams, in giving judgment said “it W'ould be absurd to hold that the form of voting must be servilely followed, ami that any departure from it would vitiate the election.” In the present case a returning officer for a different ward, in his affidavit, stated that no one could be deceived by the voting paper in question; there could not be the slightest doubt that the ratepayer intended to record his vote in favor of Mr Woodland. His Honor observed that there curious case in Victoria slightly in poiiraßß The mode of voting by ballot by the clause, " as originally drawn in the first electoral Act, which was drawn by himself, was that the name of the rejected candidate should be erased with the pen. But pen and ink were found inconvenient and accordingly it was directed (he thought by the Government) that red chalk pencils should be furnished for the purposes of erasure. The question was raised—he did not think it ever came before the Court, although it went before the law officers —whether those elections, for they spread all over the country, could be considered valid, inasmuch as the rejected candidates’names were not erased according to the statute, that was with the pen. The law officers decided and he thought the Assembly decided also that one mode of erasure was as good as another. Mr Maeassey : In the present case section 27 has been literally complied with, as opposite one of the candidates’ names a cross had been clearly marked. i His Honor : The only thing is whether or not the marks on the paper are ambiguous. Mi Maeassey; If the Court, looking at the votingjpapers and the affidavits, could see no possible doubt with regard to the’ intention of the ratepayer, he apprehended it would hold that the section had been complied with. His Honor apprehended, if the cross failed to point to which candidate the vote had been given, then the papers should be wholly rejected. Mr Maeassey quite submitted, to that* Before coming to the second voting paper he would read the affidavits. [The first wns that of Mr M. W. Hawkins, who stated there could be no question that the vote in question was .intended to he in favor of Mr Woodland, and he was corroborated in his view by Mr Greenfield, one of the scrutineers, and Mr John Griffen, The latter, however, was of opinion that the name of Mr Bagley was not so much crossed as it now appeared to he. About the second vote there was some doubt ; but the one was sufficient for his purpose, inasmuch as there was no power enabling the returning’officer to give a casting vote, and there must of ncS cessity be a new election. The returning officer could have no vote, and neither he nor the Mayor had any vote in the particular ward. In the case of the second, paper, op* posite Mr Bagley’s, there was nothing whatever—nothing certainly to indicate that the ratepayer intended to record his vote in his favor ; therefore, looking at section 27, it must he assumed that the ratepayer did not intend to vote in favor of him. Opprf site Mr Woodland’s name, there was a straight stroke. He (Mr Maeassey) appro bended the questions for the Court to determine , were—first, did section 27 require strict compliance with its provisions; secondly, if not, did this vote sufficiently in* dicate the intention of the ratepayer to vote in Mr Woodland’s favor. As to the first it was matter of construction. Were the terms of the section mandatory or directory. Was there any objection to a person stating “ I record my vote in favor of I’—apart 1 ’ —apart altogether from any cross ? Was it not the in* tention of the legislature that the ratepayer should in any manner expressive of his own wishes merely state clearly in whosejavt r he intended to record his vote ?

His Honor observed that upon the first ■paper he thought the intention of the ratepayer to be very clearly stated ; the second might be a little doubtful. He would not trouble Mr Macassey any further, as sufficient had been shown to enable him to grant the rule asked for; DRIVER, MACLEAN, AND CO. V.JpiTT, Motion to dissolve injunction. Arguments in this matter were resumed. IN BANKRUPTCY. David Carey, senior, was adjudged a bankrupt, and the first meeting of creditors fixed for the 30th inet.