SUPREME COURT.

Evening Star, Volume VIII, Issue 2282, 30 August 1870, Page 2

SUPREME COURT.

IN BANCO. Tins Bay. (before Mr Justice Chapman.) BKOINA V. BAGLEY, This was a rule nisi calling upon Mr Benjamin Bagley, Councillor for Bell Ward, to show cause why a writ of i/no irarmiifo should not issue to set aside his election as councillor, on the ground that he was not duly elected, the returning officer having improperly rejected as informal two votes, which it was alleged did not comply substantially with the terms of section 27 of the Otago Municipal Corporations Ordinance, and which votes it was claimed were recorded in favor of William Woodland. Mr Macassey, with whom was Mr Holmes, moved the rule bo made absolute. Mr Barton, instructed by Mr Harris, showed cause. He said the affidavits upon which the motion had been made set forth certain voting papers, in respect of which it was contended there could be no reasonable doubt as to the p rson for whom the votes were intended to be given, and answering affidavits had been filed which set out other voting papers which had been rejected, and which it was claimed should be counted for Mr Bagley upon the same ground—viz., that there could bo no reasonable doubt as te the intention of the voters. Mr Macassey thought the objection he had to make might be taken as a preliminary objection. He apprehended that the sole question was, whether the voting papers referred to in the case made out by the relator wore or were not improperly rejecte 1 ? and he submitted the Court could not go beyond that. His Honor decided that the objection might bo argued as part of the relator’s case.

Mr Barton submitted that answering davits having been tiled to those put in by the defendant, if he made no objection'-to them they would be allowed. That being so, the only question tor a jury, a question of fact, was settled by these affidavits, because -the relator in his affidavit admitted the fact of those votes having been given, and he claimed s nne of them. Mr Woodland in his affidavit said lie had seen seven exhibits in Mr Blair’s affidavit, and he claimed certain votes which gave him a clear major! yof two. Four he claimed as votes in his favor, two he regarded as informal, and the seventh he was willing to admit was in Mr Bagl y’s favor, subject to the question of whether or not the signature to the paper

defeated the object of vote by ballot. Upon that answering affidavit of Mr Woodland there was a question raised. His "crutinecr was aware that similar votes to those under review had been given at a previous election and rejected. He would cite a case or two to show that where a candidate allowed a particular course to be pursued on one occasion, he could not object to a similar course having been pursued on a subsequent occasion. The question was if a voter tilled up a square was there to be any discretion on the part of the returning officer to say which was meant ? Had the retur ing offi-

cer a judicial discretion ? if he had n it the statute must be strictly complied with. His Honor observed that the questions which seemed to be involved were these — Was the direction to make the cross imperative ? Would another mark do ? Then was the returning officer to judge from the voting paper what the intention of the voter was. If the intention of the voter appeared to be ambiguous, the officer would bo Justified in rejecting the vote as void ; and if the Court also thought it ambiguous, nothing could be done with it—it was a uullity. But if the mark he such as to leave upon the whole the intention of the voter, ought it to received ? if the intention be clear, notwithstanding that the mark may be otherwise than a cross. Of course if the direction was imperative, the question was decided. Then the [cross was absolutely necessary, and if the paper bore any other mark indicating the intention of the voter, it must he rejected. On the other hand, if the direction in the statute was not imperative, any other mode of clearly expressing the intention of the voter was admissable. Mr Barton submitted that the conclusion must be come to that the direction was imperative for these reasons —If not imperative these difficulties would arise. If it had to he decided what the voter meant without the possibility of appealing to the voter as

to his intention, they would never be able to decide the application of the voter’s mind. If held not to be imperative, the Court must come to the conclusion that the returning officer was not a mere ministerial officer, but a judicial one,(who had to exercise his discretion in deciding for whom the cross was intended to bo given. That involved a third difficulty. Suppose the officer to have a discretion, must he be confined to the squares or marks made within them. Then there was a further difficulty. If it were so held, lie submitted that as the statute gave no right of appeal, the decision of the officer was final.

[The case was only part heard when the Court rose. J judgments. His Honor intimated he would deliver judgments to-morrow in the cases of Regina v, Macandrew, and Ross v. Chaplin. Von Hammer v. M'Clymont.—On the motion of Mr Kenyon, the orders of submission and enlargements herein were made rules of Court. IN BANKRUPTCY. Re Henry Sheppard.— The appointment of Mr J. L. Butter-worth as trustee was confirmed. Re James Ormond.— This was a debtor’s petition for ad judication, which was granted ; the first meeting of creditors being fixed fertile Gtb prox.