The Globe. FRIDAY, JUNE 21, 1878.

Globe, Volume IX, Issue 1358, 21 June 1878, Page 2

The Globe. FRIDAY, JUNE 21, 1878.

The question of tlxo disputed election of the city auditors has been settled by an appeal being made to the Resident Magistrate under the Regulation of Local Elections Act. The decision is to the effect that the election is void, and, therefore, the burgesses will have to go through the process of voting once more. The points taken by the petitioners’ counsel were two. The first was that the Returning Officer by removing the ballot papers in a manner not provided for by the law brought the circumstances of the election under the sth sub-section of the 50th clause of the Act. Here, in fact, was the weak point of the case, and also the strong one, as far as the petitioners wore concerned. This may seem paradoxical, but it is nevertheless a fact. It is true that the petitioners were unable to prove that the act of the Returning Officer in removing the papers given under a mistake affected the election. But then —and here was the strong point of their case —the Returning Officer by destroying these papers virtually deprived them of the means of proving whether this was the fact or not. More than this also, it placed it out of the power of the Resident Magistrate under the powers given to him by the :51st section of the Act to order that a scrutiny should bo 1 1 old to ascertain whether any of the unsuccessful candidates lost votes, which would have altered the result of tho election. It will thus bo seen that although under the sth subsection, which provides that the election shall only bo void in case the removal of ballot papers in any other way than that prescribed by tho Act affects the election, the petitioners were, so to speak, out of Court, their status was restored to them by the destruction of the only evidence they could bring to prove that fact. The second point taken was the one raised by us when discussing tho subject before, viz., that under the Act the Returning Officer was bound to send all the ballot papers used at his booth to tho clerk of tho Resident Magistrate’s Court, to be dealt with according to tho Act. This, at the time we raised it, seemed to Us to bo a very strong point, and, on the argument, this view was confirmed. Having taken a certain proportion of tho papers from those deposited in tho ballotbox, tho Returning Officer was manifestly pot in a position to comply with tho law. Tho arguments on the other side were mainly confined to the construing of tho words of tho oth sub- section, more parti-

cularly those in which it is said that the election shall only bo void when the removal of the ballot papers, in a way not contemplated by the Act, was such as likely to affect the result of the election. It was contended that the onus of proof of this lay with the petitioners; and no doubt it is so. But, as we have pointed out, the only means by which they could prove this was by the examination of the papers given up to tho time when the Returning Officer discovered tho error ho had made when permitting cumulative voting. Tlioso being absent, the petitioners could not prove their case, and the cause of this was tho act of tho Returning Officer. It is true that both Mr. Lee, in giving his evidence, and Mr. Cowlishaw, in addressing the Court, pointed out that it would bo very unlikely that any man would neutralise his vote by giving a portion to ono and a portion to another or more candidates. That may bo so. Although it is quite within tho range of possibility that an elector witli four votes may give throe to one man and one to another, in which case his votes would not be neutralised. But as the Magistrate pointed out, when giving his decision, the case was ono of the construction of technicalities. It would not do, therefore, to proceed on assumption or to take for granted anything that was not actually proved by evidence. In the absence of tho documents themselves, there was no evidence of tho manner in which those 28 votes wore recorded. Under these circumstances, therefore, no other course remained, so far as we can see, for the Resident Magistrate to adopt but to give tho decision ho did. That decision it will bo remarked leaves untouched tho point raised by us as to all the papers being sealed up, which also was raised by tho Counsel for tho petitioners. Had tho other point failed, this ono would no doubt have received full consideration. Entirely apart from the question of tho fitness of tho persons elected, the question raised was one of very great importance, affecting, as it did, tho working of the ballot, and it is therefore very much better that it should have been brought before tho Court and fairly argued out than allowed to pass by. Tho citizens, it is true, will bo put to the trouble of a fresh election, but a doubt having arisen as to tho legality of the proceedings it was only right that it should bo settled once and for over by a competent tribunal. A great principle was involved, viz., tho working of the ballot, so that not even tho faintest suspicion of undue influence might exist. As far as the Returning Officer was concerned, no ono will for one moment think that what ho did was anything more than the result of an error of judgment. Ho took such stops as he thought were necessary to repair the error, but as we have shown those resulted in tho impossibility of testing, beyond a shadow of doubt, whether such action did or did not affect tho result of tho election. Tho matter is now settled, and the citizens will have to once more exercise their right of choice, and all wo can say is that we hope they will select the best men.