NOTE TO RULE 36. "There are some marks, however, which undoubtedly gave us much trouble to Schedule 1. discover what was the real meaning of them. Upon each one we have come to the best conclusion we could with the materials before us. There were some marks and blotches of a very irregular character which might be well mistaken as indications of temporary unsteadiness in the voters, who by their unsteadiness imperilled their votes. In such cases we have done our best to discover whether although obscured by the blots, blurs, and other marks, there existed positive indications on the part of the voter of an intention to vote, without a thought of leaving behind a trace to enable him to be identified. We have not been astute to give way to objections of an unsubstantial character, but we have endeavoured to interpret the language of the statute in the liberal spirit in which it is conceived, and to carry out the intentions of the legislature in the spirit in which the enactments were passed, supporting every vote which we have found to be clearly indicated, except in a few cases in which the language of the Act expressly declared them void. "There is a class of cases in which it was said that doubt was apparent on the paper for which candidate the voter intended to give his vote. Of course, if it is on the face of the ballot paper left in doubt whether the man intended to vote for one candidate or the other, the weight of the objection that the vote is uncertain is obvious, for the simple reason that one candidate has just as much right to claim the vote as the other, and so it ought not to be counted for either, and the statute so enacts." In the same case, the court was called upon to decide as to the validity of ballot papers containing marks, which, it was asserted, might lead to the identification of the voters. On this point, HAWKINS, J., said: "That would be a serious objection if it were maintained-indeed the statute enacts that it shall render the vote void. It was argued before us that if the marks were such as might lead to the indentification of the voter that would be quite sufficient to vitiate and render void the vote. That is not our opinion. It is not a question whether by some accident or other a challenged mark might possibly lead to the identification of the voter. If that were so, it would be necessary to fix some simple, well-defined cross, or other mark by which alone every ballot paper should be marked to indicate the vote; but this would render strict compliance with the requirement of the law extremely difficult and practically impossible. Very few persons, none with unsteady hands, would be capable of making a definite mark with strict accuracy, and yet any deviation from it might lead to the identification of the voter. But that in our opinion, is not the way in which these objections ought to be dealt with. We think we ought to adhere to the language of the statute itself, which says that the mark must be a mark by which the voter can not might possibly) be identified; whether the mark is such, is a matter of fact. "In the cases before us, altough one or two of the papers bore marks other than that necessary to indicate the vote, we have been unable to come to the conclusion that such marks standing alone could lead to the identification of the voter, and we think we ought not to give way to objections which were supported only by the mere suggestion that the marks referred to might possibly afford a clue to the identification of the voter." 37. Upon the completion of the counting, the returning officer shall seal up in separate packets the counted and rejected ballot papers. He shall not open the sealed packet of tendered ballot papers or marked copy of the register of voters and counterfoils, but shall proceed, in the presence of the agents of the candidates, to verify the ballot paper account given by each presiding officer by comparing it with the number of ballot papers recorded by him as aforesaid, and the unused and spoilt ballot papers in his possession and the tendered votes list, and shall re-seal each sealed packet after examination. The returning officer shall report to the Clerk of the Crown in Chancery the result of such verification, and shall, on request, allow any agents of the candidates, before such report is sent, to copy it. In the case of a municipal election or an election of county councillors, no return is to be made to the Clerk of the Crown in Chancery. See the Municipal Corporations Act, 1882, Sched. 3, Part III. r. 6, post. 38. Lastly, the returning officer shall forward to the Clerk of the Crown in Chancery (in manner in which the poll books are by any existing enactment required to be forwarded to such clerk, or as near thereto as L.G. RULE 38. Schedule 1. circumstances admit) all the packets of ballot papers in his possession, together with the said reports, the ballot paper accounts, tendered votes list, lists of votes marked by the presiding officer, statements relating thereto, declarations of inability to read, and packets of counterfoils, and marked copies of registers, sent by each presiding officer, endorsing on each packet a description of its contents and the date of the election to which they relate, and the name of the county or borough for which such election was held; and the term poll book in any such enactment shall be construed to include any document forwarded in pursuance of this rule. In municipal elections the packets, etc., are to be forwarded to the town clerk. See r. 64, post. In an election of county councillors they will be forwarded to the clerk of the council. See the Local Government Act, s. 75, sub-s. (5), ante, p. 142. 39. The Clerk of the Crown shall retain for a year all documents relating to an election forwarded to him in pursuance of this Act by a returning officer, and then, unless otherwise directed by an order of the House of Commons, or of one of Her Majesty's Superior Courts shall cause them to be destroyed. In a municipal election the documents are retained by the town clerk and destroyed by him, subject to the directions of the borough council. In an election of county councillors the clerk of the council will perform the like duties. See the note to the preceding rule. 40. No person shall be allowed to inspect any rejected ballot papers in the custody of the Clerk of the Crown in Chancery, except under the order of the House of Commons or under the order of one of Her Majesty's Superior Courts, to be granted by such court on being satisfied by evidence on oath that the inspection or production of such ballot papers is required for the purpose of instituting or maintaining a prosecution for an offence in relation to ballot papers, or for the purpose of a petition questioning an election or return; and any such order for the inspection or production of ballot papers may be made subject to such conditions as to persons, time, place and mode of inspection or production as the House or court making the same may think expedient, and shall be obeyed by the Clerk of the Crown in Chancery. Any power given to a court by this rule may be exercised by any judge of such court at chambers. In the case of a municipal election, or an election of county councillors, the order for inspection will be made by the county court. See r. 64, post. A prosecution having been instituted against the deputy-returning officer, who had presided at a booth during a municipal election, for offences under the Ballot Act, 1872 (35 & 36 Vict. c. 33), a county court judge, in the exercise of jurisdiction given by Sched. 1, Part II. r. 64 of the Act, made an order directing the town clerk of the borough to produce and show, for the purpose of the prosecution, certain rejected ballot papers, counterfoils, counted ballot papers, and spoilt ballot papers relating to the same polling station, and to open the sealed packets containing those documents, and the marked copy of the register, and to take all such proper means as he should deem necessary in order that the mode in which any particular elector had voted should not be discovered; and further ordered that no person should be allowed to see the face of the counted ballot papers. At the trial of the indictment against the prisoner, charging him with having fraudulently placed papers purporting to be, but to his knowledge not being, ballot papers in the ballot box, BLACKBURN, J., allowed the counterfoils and marked register produced under the aforesaid order to be given in evidence, and the face of the voting papers to be inspected so as to show how the votes appeared to have been given. Held, that this was rightly done. R. v. Beardsall, 1 Q. B. D. 452; 45 L. J. M. C. 157; 34 L. T. (N.s.) 660; 40 J. P. 583. Liberty was given to the Clerk of the Crown to open the packet of rejected ballot papers, and to permit a petitioner and his agents to inspect certain ballot papers which had been rejected by the returning officer on the ground that there were upon them writings or marks by which the voters could be identified, but NOTE 10 RULE 40. so as not to permit any inspection of the numbers on the backs of the ballot Schedule 1. papers corresponding with the number on the counterfoils. Tyrone Election Petition, 7 Ir. R. C. L. 190; 21 W. R. 627. Where at a parliamentary election there was a bare majority on a large number of votes and an affidavit was filed that it was impossible that the return could be correct and that there must have been a miscounting, the court would not allow an inspection of the ballot papers in the absence of a petition, and doubted whether they hadj urisdiction to make such an order unless a petition had been presented. Darwen case, 2 T. L. R. 220. Generally as to when inspection will be granted, see Stowe v. Jolliffe, ante, p. 221. 41. No person shall, except by order of the House of Commons or any tribunal having cognizance of petitions complaining of undue returns or undue elections, open the sealed packet of counterfoils after the same has been once sealed upon, or be allowed to inspect any counted ballot papers in the custody of the Clerk of the Crown in Chancery; such order may be made subject to such conditions as to persons, time, place, and mode of opening or inspection as the House or tribunal making the order may think expedient; provided that on making and carrying into effect any such order, care shall be taken that the mode in which any particular elector has voted shall not be discovered until he has been proved to have voted, and his vote has been declared by a competent court to be invalid. In the case of municipal elections, or elections of county councillors, an order may be made under this rule by the county court. See r. 64, post. 42. All documents forwarded by a returning officer in pursuance of this Act to the Clerk of the Crown in Chancery, other than ballot papers and counterfoils, shall be open to public inspection at such time and under such regulations as may be prescribed by the Clerk of the Crown in Chancery, with the consent of the Speaker of the House of Commons, and the Clerk of the Crown shall supply copies of or extracts from the said documents to any person demanding the same, on payment of such fees and subject to such regulations as may be sanctioned by the Treasury. In the case of a municipal election, or an election of county councillors, the regulations for the inspection of documents and the fees for the supply of copies of documents of which copies are directed to be supplied are to be prescribed by the borough council (or county council as the case may be), with the consent of a Secretary of State. See r. 64, post. Leave to inspect the marked register of voters, returned by the presiding officer to the Clerk of the Crown in Chancery under the Ballot Act, 1872, will be granted where the petition against the return of a candidate at a parliamentary election charges bribery and treating although it does not pray a scrutiny. James v. Henderson, 43 L. J. P. C. 238; 30 L. T. (N.S.) 527; 38 J. P. 663. 43. Where an order is made for the production by the Clerk of the Crown in Chancery of any document in his possession relating to any specified election, the production by such clerk or his agent of the document ordered, in such manner as may be directed by such order, or by a rule of the court having power to make such order, shall be conclusive evidence that such document relates to the specified election; and any endorsement appearing on any packet of ballot papers produced by such Clerk of the Crown or his agent shall be evidence of such papers being what they are stated to be by the endorsement. The production from proper custody of a ballot paper purporting to have been used at any election, and of a counterfoil marked with the same printed number and having a number marked thereon in writing, shall be prima facie evidence that the person who voted by such ballot paper was the person who at the time of such election had affixed to his name in the register of voters at such election the same number as the number written on such counterfoil. Schedule 1. RULE 45. 45. The returning officer shall, as soon as possible, give public notice of the names of the candidates elected, and, in the case of a contested election, of the total number of votes given for each candidate, whether elected or not. By stating at the close of the poll the number of votes given to each candidate at a municipal election, the returning officer makes a sufficient declaration under s. 2 of this Act, and the effect of that declaration is not altered by reason of a public notice given on the following day under this rule and the next. R. v. Bangor (Mayor, etc., of), 18 Q. B. D. 349; 56 L. J. Q. B. 326; 56 L. T. (N.s.) 434; 35 W. R. 158; 51 J. P. 51. 46. Where the returning officer is required or authorized by this Act to give any public notice, he shall carry such requirement into effect by advertisements, placards, handbills, or such other means as he thinks best calculated to afford information to the electors. 47. The returning officer may, if he think fit, preside at any polling station, and the provisions of this Act relating to a presiding officer shall apply to such returning officer with the necessary modifications as to things to be done by the returning officer to the presiding officer, or the presiding officer to the returning officer. 48. In the case of a contested election for any county or borough, the returning officer may, in addition to any clerks, appoint competent persons to assist him in counting the votes. 49. No person shall be appointed by a returning officer for the purposes of an election who has been employed by any other person in or about the election. 50. The presiding officer may do, by the clerks appointed to assist him, any act which he is required or authorized to do by this Act at a polling station except ordering the arrest, exclusion, or ejection from the polling station of any person. As to As to the power to order arrest, see 6 & 7 Vict. c. 18, s. 86, ante, p. 216. the power to order the exclusion or ejection of any person, see s. 9 of this Act, ante, p. 211. 51. A candidate may himself undertake the duties which any agent of his if appointed might have undertaken, or may assist his agent in the performance of such duties, and may be present at any place at which his agent may, in pursuance of this Act, attend. But though a candidate does not himself undertake the duties of an agent and does not assist his agent, he is nevertheless entitled to be present at polling stations. Clementson v. Mason, cited in the notes to s. 9, ante. 52. The name and address of every agent of a candidate appointed to attend the counting of the votes shall be transmitted to the returning officer one clear day at the least before the opening of the poll; and the returning officer may refuse to admit to the place where the votes are counted any agent whose name and address has not been so transmitted, notwithstanding that his appointment may be otherwise valid, and any notice required to be given to an agent by the returning officer may be delivered at or sent by post to such address. As to agents at municipal elections and elections of county councillors, see the Municipal Corporations Act, 1882, s. 58, sub-s. (6), post. 53. If any person appointed an agent by a candidate for the purposes of attending at the polling station or at the counting of the votes dies, or becomes incapable of acting during the time of the election, the candidate may appoint another agent in his place, and shall forthwith give to the returning officer notice in writing of the name and address of the agent so appointed. 54. Every returning officer, and every officer, clerk, or agent authorized to attend at a polling station, or at the counting of the votes, shall before the RULE 54. opening of the poll make a statutory declaration of secrecy, in the presence, Schedule 1. As to the penalties for infringement of secrecy, see s. 4. 55. Where in this Act any expressions are used requiring or authorizing or inferring that any act or thing is to be done in the presence of the agents of the candidates, such expressions shall be deemed to refer to the presence of such agents of the candidates as may be authorized to attend, and as have in fact attended, at the time and place where such act or thing is being done, and the non-attendance of any agents or agent at such time and place shall not, if such act or thing be otherwise duly done, in anywise invalidate the act or thing done. 56. In reckoning time for the purposes of this Act, Sunday, Christmas Day, Good Friday, and any day set apart for a public fast or public thanksgiving, shall be excluded; and where anything is required by this Act to be done on any day which falls on the above-mentioned days such thing may be done on the next day, unless it is one of the days excluded as above mentioned. The expression "agents of the candidates," used in relation to a polling five of the Act of the session of the sixth and seventh years of the See s. 85, of 6 & 7 Vict, c. 18, in the notes to s. 24, ante, p. 215, and as to agents at a municipal election or an election of county councillors, see the Municipal Corporations Act, 1882, s. 58, sub-s. (6), post. 64. In the application of the provisions of this schedule to muncipal elections the following modifications shall be made :— (a.) The expression "register of voters" means the burgess roll of the burgesses of the borough, or, in the case of an election for the ward (b.) All ballot papers and other documents which, in the case of a parlia- (a.) An order of the county court having jurisdiction in the borough, or any part thereof, or of any tribunal in which a municipal election |