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board there situated ever could be. Besides, it is supported by an amount of local sympathy and liberality which never could be extended to, or reciprocated by, any other district. Take as an example the munificent subscriptions for the erection of its glorious new University Buildings. The case of Aberdeen is closely analogous; whilst St. Andrews possesses historcial claims to reverence which none of them can rival and which it would be in the highest degree unfair and unwise to overlook. It is to competition and friendly rivalry between the separate Universities and separate school districts of Scotland, and not to their amalgamation and joint action, that we must trust for raising the standard of examinations, and the consequent value of Scotch degrees-in so far at least as their depreciation arises from their character, and not from the insignificant results to which they lead. The want of learned appointments is the real cause of the slight esteem in which they are held. Let their value be raised in this respect, and I am grievously mistaken if they do not soon rival the best honour-degrees, as they are already surpass the best pass-degrees, either at Oxford or Cambridge.
ANALYSIS OF THE BALLOT ACT AS APPLICABLE TO SCOTLAND.
BY DAVID CRICHTON, Esq., Advocate.
(Continued from page 75.)
II. MUNICIPAL ELECTION.
THE Act applies to Royal and Parliamentary burghs and places which have adopted the Police Act of 1850 or the Police and Improvement Act of 1862. Municipal election is defined to mean an election of any person to serve the office of councillor or commissioner of any municipal borough, or of any ward or district of any municipal borough; which is defined to mean any place for the time being subject to the Municipal Corporation Acts, or any of them; which are the Acts 3 & 4 Will. IV. c. 76; 3 & 4 Will. IV. c. 77; 13 & 14 Vict. c. 33; the General Police and Improvement (Scotland) Act, and any Acts amending the same.
The principal alterations which the Act makes are these: The alteration in the mode of taking the poll; and the assimilation of all municipal elections to municipal elections in Edinburgh, and the other royal burghs specified in Schedule C to the Act 3 & 4 Will. 4, c. 76.
Section 20 provides that "the poll at every contested municipal election shall, so far as circumstances admit, be conducted in the manner in which the poll is by this Act directed to be conducted at a contested parliamentary election," and that such provisions of
the Act as "relate to or are concerned with a poll at a parliamentary election, shall apply to a poll at a contested municipal election." There are some exceptions, of which the chief are: The returning officer's right to vote in case of an equality of votes; the compulsory use of a room for taking the poll; and the return to the Clerk of the Crown in Chancery. At the end of the section it is provided that "a municipal election shall, except in so far as relates to the taking of the poll, be conducted in the manner in which it would have been conducted if this Act had not passed" (s. 20). The beginning and the end of this section are not consistent. A provision as to notice of the poll, or as to the declaration of the poll, is a provision which "relates to," or is "concerned with," the poll; but it is not a provision which "relates to the taking of the poll." The provision at the end of the section being the last, and being more precise and distinct than that at the beginning, must be taken to be the ruling one. Yet if it were intended that a municipal election should be conducted as formerly, except as regards the "taking of the poll," it was surely not necessary to mention expressly that no return is to be made, as in parliamentary elections.
As the Ballot Act, while assimilating municipal to parliamentary elections, has limited this assimilation, it will be useful to point out what alterations are made, and what are the principal points of difference which remain between parliamentary and municipal elections; and, in doing so, we shall follow the order adopted in treating of parliamentary elections. In this part of the subject we treat only of elections in the burghs specified in Schedule C, which are to form the model according to which all other municipal elections are to be conducted henceforth.
If section 20 stood alone, it would be perfectly clear that the rules as to nomination of candidates in municipal elections remain unaltered. But in the second schedule it is provided that "the form of nomination paper in a municipal election shall, as nearly as circumstances admit, be the same as in the case of a parliamentary election." Now, the form of nomination paper to which this note is appended, in accordance with the requirements of the Act, contains a great deal more than is requisite under the Municipal Election Acts. In parliamentary elections, the nomination paper requires to be subscribed by eight electors, in addition to the proposer and seconder. Under the Municipal Elections Amendment (Scotland) Act of 1868, only a proposer and seconder are required. In parliamentary elections, the nomination paper contains the names, abode, rank, profession or calling of the candidates. Under the Municipal Elections Amendment Act of 1868, only the name and abode of the candidate require to be stated. Considering the provision that, except as regards the taking of the poll, municipal elections shall be conducted as formerly, and that the requirement in Schedule II. concerns merely the form of nomination paper, it seems quite clear that the assent of eight electors
is not required in municipal elections, and that the nomination paper need not contain anything not required by the previous Acts; but that anything that is required must be stated in the form provided by the Ballot Act. By Rule 22 of the Ballot Act, the ballot paper contains a list of the candidates, described as in their nomination papers. The ballot papers in municipal elections will differ from ballot papers in parliamentary elections, in not containing the description of the rank, calling, or profession of the candidates. In municipal elections, the Town-Clerk is the official to whom the nomination papers are delivered, and who gives the notices of the persons nominated, and not the returning officer, as in the case of parliamentary elections (Municipal Elections Amendment (Scotland) Act, 1868, 3. 9). As regards municipal elections, "returning officer" means the provost or chief magistrate of a municipal borough, or other officer who presides at such elections (ss. 20, 22). In parliamentary elections the nomination paper must be delivered by the candidate himself, his proposer or seconder; in municipal elections it may be delivered by any person. There is no provision in the Municipal Election Acts for withdrawal of a candidate, or for countermand of a poll.
By the Act 3 & 4 Will. IV. c. 76, s. 9, power is given to the town-clerk to appoint polling places and booths, or divisions at each polling-place; and by the Act 31 & 32 Vict. c. 108, ss. 16, 17, where more than one polling-place or compartment is required in a ward, he is to provide such additional number as may be necessary. The Ballot Act makes an alteration here. The provost or chief magistrate is to provide everything which in the case of a parliamentary election is required to be provided by the returning officer for the purpose of a poll (s. 20 ), and in the case of a parliamentary election, the returning officer is to provide nomination papers, polling-stations, &c. (s. 8). Where a parliamentary borough and a municipal borough occupy the whole or part of the same area, the ballot-boxes and fittings for polling-stations provided for the parliamentary borough may be used free of charge for the municipal borough, and vice versa (s. 14). The provision of the Act, as to the compulsory use of a room for taking the poll, does not apply in the case of a municipal election (s. 20 ). The Act does not alter the day of the poll (R. 64). Nothing in the Act is to authorize the appointment of agents of a candidate; but if an agent is appointed, and notice in writing of such appointment is given to the returning officer, the provisions of the Act apply to such agent (s. 20 ). He will therefore require to take the declaration of secrecy. In parliamentary elections the presiding officers do not require to have any special qualifications. But in municipal elections, before the Ballot Act, the officers corresponding to pre
1 Where a borough happens to be without a legal council, and is under the administration of managers, the returning officer will be a manager, appointed by the Sheriff, to conduct the election of councillors (31 & 32 Vict. c. 108, s. 13).
siding officers required to be Advocates, Writers to the Signet, Solicitors before the Supreme Court, or Procurators in the Inferior Courts, of not less than three years standing (3 & 4 Will. IV. c. 76, s. 8); and the Ballot Act does not seem to remove this necessity of having this qualification. While it repeals part of the section in question, it leaves this part intact.
Under the old system, the provost or chief magistrate, on the next lawful day after receiving the poll-books, between the hours of twelve and two, opened the poll books, cast up the votes, and declared on whom the election had fallen (3 & 4 Will. IV. c. 76, s. 10). In parliamentary elections, under the Ballot Act, the returning officer," as soon as practicable after the close of the poll," proceeds to count the votes, and "forthwith" declares on whom the election has fallen (R. 32, s. 2). Do the provisions of the Act as to counting the votes apply in the case of a municipal election? As we have seen, a municipal election is to be conducted as before, except in so far as relates to the taking of the poll. Now the taking of the poll and the casting up or counting of the votes are quite distinct operations, and both in the Ballot Act and the previous election Acts they are spoken of as separate. No doubt section 10 of the Act 3 & 4 Will. IV. c. 76, is repealed "so far as it relates to poll-books;" but this does not necessarily carry with it the repeal of that part which relates to counting the votes, a thing which requires to be done whether the election is conducted by poll-books or by ballot papers. On the other hand, the Ballot Act repeals all enactments inconsistent with it (s. 32), and it would not be consistent with the Act to count the votes without the precautions provided for ensuring secrecy; and in the provisions for the custody and inspection of election documents, it seems taken for granted that the proceedings after the poll and before the transmission of these documents have been the same as in parliamentary elections; and that being so it may fairly be argued that the time for these proceedings should also be the same.
In case of an equality of votes, the returning officer has not a casting vote (s. 20 ). He makes a double return, and a new election takes place (3 & 4 Will. IV. c 76, s. 10).
The definition of, and the penalty attached to, personation are the same in municipal as in parliamentary elections (s. 24).
The ballot papers and other election documents, instead of being transmitted to the sheriff-clerk of the county, as in the case of a parliamentary election, are delivered to the town-clerk of the borough, and are kept by him among the records of the borough, subject as regards their custody and destruction to the directions of the town council (R. 38, 64). No person is allowed to inspect the rejected ballot papers in the Town Clerk's possession, except under order of the Sheriff Court having jurisdiction in the borough, or of any tribunal in which a municipal election is questioned. No person is allowed, except by order of the Sheriff Court, or of a
tribunal in which a municipal election is questioned, to open the sealed packet of counterfoils, or inspect the counted ballot papers in the town-clerk's possession. An appeal from the Sheriff Court may be had in like manner as in other cases in such Court. The regulations for the inspection of documents (ie., apparently, documents other than ballot papers and counterfoils) are to be prescribed by the council of the borough, with consent of one of Her Majesty's principal Secretaries of State (R. 40, 41, 42, 64).
The Act is to apply to "any parliamentary or municipal election" which may be held after the passing of the Act (s. 30). Does it apply to, and must the vote be taken by ballot in elections other than the ordinary annual elections? The abstract of the Act for the information of returning officers issued by the Lord Advocate, states that " every election, whether parliamentary or municipal, although only to supply a casual vacancy," must be conducted in accordance with the provisions of the Ballot Act. Now, casual vacancies are of two kinds. If there is an equality of votes, and consequently a double return, or if a candidate is elected for more than one ward, or if a candidate declines or fails to accept office, the returning officer orders a new election (3 & 4 Will. IV. c. 76, s. 10); or if an election has been found null, the Court of Session, on the application of an elector, grants warrant for a new election (16 Vict. c. 26, s. 1). In these cases the elections proceed as in the case of the annual elections. The Act clearly applies to them. But if during the year a councillor dies, or becomes disabled, or resigns, a new election is not ordered, but the vacancy is filled up ad interim by the remaining members of council. In such a case, we think the Ballot Act does not apply. Its provisions as to polling-booths, the number of electors for whom compartments are to be provided, &c., clearly point to elections by the electors on the register.
The other great alteration made by the Act, is the assimilation of all municipal elections to municipal elections in the burghs contained in Schedule C to the Act 3 & 4 Will. IV. c. 76. "All muni
cipal elections shall be conducted in the same manner in all respects in which elections of councillors in" these royal burghs "are directed to be conducted by the Acts in force at the time of the passing of this Act" (s. 22). The alteration made here is more extensive than that made by section 20; not being confined to "the taking of the poll."
The burghs in Schedule C were all divided into wards. many royal and parliamentary burghs were not so divided, and in these a different mode of election was followed. The electors met in the town-hall, and each voter gave in to the town-clerk a list of the candidates for whom he wished to vote, signed by himself (3 & 4 Will. IV. c. 76, s. 11; 3 & 4 Will. IV. c. 77, s. 4; 33 & 34 Vict. c. 92, s. 8). But the Ballot Act repeals these sections of the two first-mentioned Acts, so far as they relate to voting by lists,