(2.) If— (a.) An overseer neglects or refuses to make, sign (d), or (b.) A town clerk (e) neglects or refuses to receive, print, and (c.) An overseer or town clerk (e) refuses to allow any thereto; he shall for every such neglect or refusal be liable to a fine not exceeding fifty pounds, recoverable by action (c). (3.) An action under this section shall not lie after three months from the neglect or refusal. A moiety of any fine recovered therein shall, after payment of the costs of action, be paid to the plaintiff. (a) It has already been pointed out that in future no parish burgess list will be revised by the mayor and revising assessors. See s. 44, ante, p. 279, and the notes thereto. (b) In applying this section to county councils the returning officer must be substituted for the mayor or alderman. See the Local Government Act, s. 75, ante, p. 142. A mere omission, though not wilful, is an offence against this section. King v. Burrell, 12 A. & E. 460; King v. Share, 3 Q. B. 31; Clarke v. Gant, 8 Ex. 252; Hunt v. Hibbs, 5 H. & N. 123; 29 L. J. Ex. 122; 6 Jur. (N.s.) 78 ; 2 L. T. (N.S.) 379; 8 W. R. 238; 24 J. P. 118; Harwich (Mayor, etc., of) v. Grant, 5 E. & B. 182. (c) See s. 226, post. But observe that by sub-s. (3) the action must be brought within three months. Notice of action is not necessary. King v. Burrell, supra. (d) The delivery of a printed copy, corrected by an overseer in his own handwriting, is not a sufficient signature. King v. Burrell, supra. (e) This will apply to the clerk of a county council with regard to the county electors' lists. Where liability is incurred for neglecting to make out a list, a second penalty is not incurred under this sub-section. Gregory v. Fell, 6 Jur. 422. Sect. 75 (2). expiration of 76.-(1.) If the Ballot Act, 1872, ceases to be in force, so much Revival of of this Act as directs that the poll at a contested election of former law on councillors shall be conducted as the poll at a contested parlia- Ballot Act. mentary election is by the Ballot Act, 1872, directed to be conducted, and as applies provisions of the Ballot Act, 1872, to a poll at a contested election of councillors, shall forthwith cease to be in force, and thereupon the enactments in Part IV. of the Third Schedule shall revive and be in force. (2.) But this cesser and revivor shall not affect any act done, right acquired, or liability or fine incurred, or the institution Sect. 76 (2). or prosecution to its termination of any proceeding in respect of any such right, liability, or fine. Definitions. The Ballot Act, 1872, is continued in force until December 31st, 1898, by the Expiring Laws Continuance Act, 1897. PART IV. CORRUPT PRACTICES AND ELECTION PETITIONS. 77. In this Part 66 Corrupt Practices. Bribery," "treating," "undue influence," and " personation" (a), include respectively anything done before, at, after, or with respect to a municipal election, which if done before, at, after, or with respect to a parliamentary election would make the person doing the same liable to any penalty, punishment, or disqualification for bribery, treating, undue influence, or personation, as the case may be, under any Act for the time being in force with respect to parliamentary elections (b) : "Candidate" means a person elected, or having been nominated, or having declared himself a candidate for election, to a corporate office (c): "Voter means a burgess or a person who votes or claims to vote at a municipal election: "Election court means a court constituted under this Part for the trial of an election petition: "Municipal election petition" or or "election petition" means a petition under this Part complaining of an undue municipal election : Parliamentary election petition" means a petition under the Parliamentary Elections Act, 1868 : "Prescribed means prescribed by general rules made under this Part: 66 Borough and "election when used with reference to a petition mean the borough and election to which the petition. relates. (a) The definition of these offences will be found in the Municipal Elections (Corrupt Practices) Act, 1884 (47 & 48 Vict. c. 70), Sched. 3, post, which amends this part of the Municipal Corporations Act, 1882, and is incorporated with the Local Government Act by s. 75, ante, p. 141. " (b) The definition of "corrupt practice" and "canvasser are repealed by 47 & 48 Vict. c. 70, post. (c) See the note to s. 4 of the Municipal Elections (Corrupt Practices) Act, 1884, post. These sections were repealed by the 47 & 48 Vict. c. 70, post. 81. A municipal election shall be wholly avoided by such Sect. 81. general corruption, bribery, treating, or intimidation at the election Avoidance of as would by the common law of Parliament avoid a parliamentary election for election. An election might be avoided under this section, although the candidates and their agents had nothing to do with the general corruption, etc. See The Lichfield case, 1 O'M. & H. 26; 20 L. T. (N.s.) 14; The Bradford case, 1 O'M. & H. 40; 19 L. T. (N.s.) 725; The Cheltenham case, 19 L. T. 818; The Salford case, 1 O'M. & H. 140; The Nottingham case, 1 O'M. & H. 246 ; The Galway case, 2 O'M. & H. 56; The Drogheda case, 1 O'M. & H. 255; The Dudley case, 2 O'M. & H. 121. general corruption. votes. 85. The votes of persons in respect of whom any corrupt practice Striking off is proved to have been committed at a municipal election shall be struck off on a scrutiny. The 47 & 48 Vict. c. 70, s. 22, post, provides that every person guilty of a corrupt or illegal practice, or of illegal employment, payment, or hiring at a municipal election, is prohibited from voting at such election, and if any such person votes his vote shall be void, and shall be struck off on a scrutiny. This provision is of wider application than the above section, and practically supersedes it. 86. The enactments for the time being in force for the detection Personation. of personation and for the apprehension of persons charged with personation at a parliamentary election shall apply in the case of a municipal election. These enactments are contained in 6 Vict. c. 18, ss. 85-89, which are incorporated with the Ballot Act, 1872 (35 & 36 Vict. c. 33), s. 24, and are set out, ante, p. 215. They provide for the appointment of agents to detect personation at the time of polling, for the giving of persons charged with personation into custody, and for the proceedings before justices on the charge. Election Petitions. 87.-(1.) A municipal election may be questioned by an election Power to petition on the ground(a.) That the election was as to the borough or ward wholly election by question municipal avoided by general bribery, treating, undue influence, or petition. personation (a); or (b.) That the election was avoided by corrupt practices or offences against this Part committed at the election (b); or (c.) That the person whose election is questioned was at the time of the election disqualified (c); or (d.) That he was not duly elected by a majority of lawful votes (d). Sect. 87 (2). (2.) A municipal election shall not be questioned on any of those grounds except by an election petition (e). (a) For the definition of these offences, see Part I. of Sched. 3 of the 47 & 48 Vict. c. 70, post, and the notes to that schedule; and see s. 81 and notes ante. (b) An election may also be questioned for illegal practices. 47 & 48 Vict. c. 70, ss. 8, 25, post. See (c) This applies only to disqualifications existing at the time of the election. If a councillor becomes disqualified after he has been elected, the proper remedy is by quo warranto. Where the mayor disallowed an objection to a nomination paper, relating not to its form, but to the time of its delivery, it was held that this decision might be questioned on petition under the provision in the text. Howes v. Turner, 1 C. P. D. 670; 45 L. J. C. P. 550 ; 35 L. T. (N.S.) 58. BRETT, J., pointed out that the word disqualified was not limited to personal disqualification only. Two candidates, R. and P., were nominated for the office of councillor of a ward of a borough. P. objected to R.'s nomination on the ground that he was disqualified, but the mayor disallowed the objection. P. insisted on the objection throughout the election. At the poll R. received a majority of votes. The day after the poll the returning officer issued a public notice, stating the number of votes given for each candidate and the objections, and declaring P. to be duly elected. Both P. and R. subscribed the declaration of acceptance of office under ss. 34, 35, ante. It was held by the House of Lords (affirming the Court of Appeal) that the returning officer had no jurisdiction to determine the question of disqualification, the proper method for determining that question being an election petition under this section. Pritchard v. Bangor (Mayor, etc., of), 13 App. Cas. 241; 57 L. J. Q. B. 313; 58 L. T. (n.s.) 502 ; 37 W. R. 158; 52 J. P. 564. If an elector having knowledge or notice of the disqualification of a candidate wilfully votes for him, his vote is thrown away. But knowledge of the fact which creates a legal disqualification does not involve knowledge that the candidate is legally disqualified, unless the fact that the disqualification exists is notorious. Gosling v. Veley, 7 Q. B. 406; Drinkwater v. Deakin, L. R. 9 C. P. 626; R. v. Tewkesbury (Mayor, etc., of), L. R. 3 Q. B. 629; 37 L. J. Q. B. 288; 18 L. T. (N.S.) 851; 16 W. R. 1200; Beresford-Hope v. Sandhurst, 23 Q. B. D. 79. See, further, as to votes thrown away, R. v. Hiorns, 7 A. & E. 960; R. v. Leeds (Mayor, etc., of ), ib. 963. Under Sched. 3, Part II. r. 7, post, a nomination paper must be delivered by the candidate, or his proposer or seconder, personally, and not by an agent. A nomination objected to on this ground is cognizable by the mayor, whose decision allowing it may be questioned on petition. Monks v. Jackson, 1 C. P. D. 683; 46 L. J. C. P. 162; 35 L. T. (N.s.) 95. (d) In this case the petition will, in most cases, involve a scrutiny. But where a returning officer has improperly allowed an objection to a nomination paper, a petition lies under this head, for if the paper had not been rejected the votes might have been differently given. Budge v. Andrews, 3 C. P. D. 510 ; 47 L. J. C. P. 586; 39 L. T. (N.s.) 166. (e) It follows from this provision that quo warranto will not lie on any of the grounds mentioned in this section. At a municipal election A. and B. were candidates for the office of councillor. A. obtained a majority of votes over B., and was declared elected, but, being disqualified, refused to serve. B. thereupon claimed to have been elected, and having made the necessary declaration, acted on several occasions as councillor. and A petition under 35 & 36 Vict. c. 60, was presented against both A. and B., both of them gave notice of their intention not to oppose the petition. No notice of A.'s disqualification was given to the electors. On an application by B. to the court that his name might be struck out of the petition, the court refused the application on the ground that he was properly made a respondent. Yates v. Leach, L. R. 9 C. P. 605; 43 L. J. C. P. 377; 30 L. T. (N.S.) 790. Where a councillor became disqualified through having made a composition with his creditors, but his office was never declared vacant under s. 39, ante, p. 275, and he was afterwards re-elected, it was held that if there was any remedy in such a case it was by petition, and not by mandamus, to declare the office void. R. v. Welshpool (Mayor of), 35 L. T. (N.s.) 594. At an election of an alderman for a borough there were two candidates, one of whom was the mayor. The mayor presided and voted for himself, which carried an equality of votes. He then gave a casting vote in his own favour, and declared himself elected. On application for a quo warranto to question his right to act as alderman, it was held that, assuming that he was improperly elected, the case fell within either (c) or (d) of sub-s. (1) of this section, and that the election could not be questioned except by election petition, and quo warranto would not lie. R. v. Morton, [1892] 1 Q. B. 39; 61 L. J. Q. B. 39; 65 L. T. 611; 40 W. R. 109; 56 J. P. 105; 8 T. L. R. 50; and see R. v. Miles, Ex parte Cole, 64 L. J. Q. B. 420; 72 L. T. (N.s.) 502; 43 W. R. 445; 59 J. P. 407. Sect. 87. NOTE. 88.-(1.) An election petition may be presented either by four Presentation of petition. or more persons who voted or had a right to vote at the election or by a person alleging himself to have been a candidate at the election. (2.) Any person whose election is questioned by the petition, and any returning officer of whose conduct a petition complains, may be made a respondent to the petition (a). (3.) The petition shall be in the prescribed form and shall be signed by the petitioner, and shall be presented in the prescribed manner to the High Court in the Queen's Bench Division, and the prescribed officer shall send a copy thereof to the town clerk, who shall forthwith publish it in the borough (b). (4.) It shall be presented within twenty-one days after the day on which the election was held, except that if it complains of the election on the ground of corrupt practices, and specifically alleges that a payment of money or other reward has been made or promised since the election by a person elected at the election, or on his account or with his privity, in pursuance or furtherance of such corrupt practices, it may be presented at any time within twenty-eight days after the date of the alleged payment or promise, whether or not any other petition against that person has been previously presented or tried (e). (a) A petition may be presented against some only of the persons returned, though the ground of the petition is one affecting the validity of the election as a whole; and the court can in such a case declare the person so petitioned against not to have been duly elected. Line v. Warren, 14 Q. B. D. 548; 54 L. J. Q. B. 291; 49 J. P. 516. |