Sect. 99.

NOTE.

Rules of

(b) See rr. 50, 51, post.

(c) The shorthand writer is to be the shorthand writer to the House of Commons or his deputy. See r. 52, post.

100.-(1.) The judges for the time being on the rota for the procedure and trial of parliamentary election petitions may from time to time jurisdiction. make, revoke, and alter General Rules for the effectual execution of this part, and of the intention and object thereof, and the regulation of the practice, procedure, and costs of municipal election petitions, and the trial thereof, and the certifying and reporting thereon (a).

(2.) All such rules shall be laid before both Houses of Parliament within three weeks after they are made, if Parliament is then sitting, and if not, within three weeks after the beginning of the then next session of Parliament, and shall, while in force, have effect as if enacted in this Act.

(3.) Subject to the provisions of this Act (b), and of the rules under it, the principles, practice, and rules for the time being observed in the case of parliamentary election petitions, and in particular the principles and rules with regard to agency and evidence, and to a scrutiny, and to the declaring any person elected in the room of any other person declared to have been not duly elected, shall be observed, as far as may be, in the case of a municipal election petition.

(4.) The High Court shall, subject to this Act, have the same powers, jurisdiction, and authority with respect to a municipal election petition and the proceedings thereon as if the petition were an ordinary action within its jurisdiction (c).

(5.) The duties to be performed by the prescribed officer under this Part shall be performed by the prescribed officer of the High Court (d). (6.) The general rules in force at the commencement of this Act with respect to matters within this Part shall, until superseded by rules made under this section, and subject to any amendment thereof by rules so made, have effect, with the necessary modifications, as if made under this section.

(a) See also 47 & 48 Vict. c. 70, s. 30, post. The rules now in force are set out post.

(b) See Clarke v. Wallond, ante, p. 300; Lovering v. Dawson, ante, p. 309. (c) The High Court has no power to entertain an appeal against the decision of a commissioner appointed to inquire into alleged corrupt or illegal practices at an election, except on points of law reserved for its decision by way of a case stated by the commissioners. Ex parte Ayres, 54 L. T. (N.s.) 296. A petition against the election of members of a local board alleged undue influence by the respondents and their agents, and that corrupt and illegal practices extensively prevailed. The commissioner reported to the High Court that no corrupt practice had been proved against the respondents or otherwise, that illegal practices extensively prevailed, and that the respondents had been guilty of illegal practices; and he certified that the respondents had not been

NOTE.

duly elected. On a motion for a new trial or a prohibition, on the ground Sect. 100. that the petitioner had exceeded his jurisdiction, it was held that the report was not in excess of the jurisdiction. Quære, whether the Court has jurisdiction to entertain an appeal from a commissioner. Per STEPHEN, J. The jurisdiction, if any, ought only to be exercised under extraordinary circumstances, and when necessary in order that justice should be done. Marshland v. Hickman (Goole Election Petition), 2 T. L. R. 398.

(d) That is, by the Master. See r. 1, post.

election

101.—(1.) The remuneration and allowances to be paid to a Expenses of commissioner for his services in respect of the trial of an election court. petition, and to any officers, clerks, or shorthand writers employed under this Part, shall be fixed by a scale made and varied by the election judges on the rota for the trial of parliamentary election petitions with the approval of the Treasury. The remuneration and allowances shall be paid in the first instance by the Treasury, and shall be repaid to the treasury, on their certificate, out of the borough fund or borough rate (a).

(2.) But the election court may in its discretion order that such remuneration and allowances, or the expenses incurred by a town clerk for receiving the election court (b), shall be repaid, wholly or in part, to the Treasury or the town clerk, as the case may be, in the cases, by the persons, and in the manner following (namely) :

(a.) When in the opinion of the election court a petition is frivolous and vexatious, by the petitioner;

(b.) When in the opinion of the election court a respondent has been personally guilty of corrupt practices at the election,

by that respondent.

(3) An order so made for the repayment of any sum by a petitioner or respondent may be enforced as an order for payment of costs (e); but a deposit made or security given under this Part shall not be applied for any such repayment until all costs and expenses payable by the petitioner or respondent to any party to the petition have been satisfied.

(a) In the case of a county council these expenses will be payable out of the county fund.

(b) See s. 99, ante, p. 309. The reference to the town clerk includes a reference to the clerk to the county council. See the Local Government Act, s. 75, sub-s. (5), ante, p. 142.

(c) See s. 98, ante, p. 308.

Upon the trial of a petition against the return of a borough councillor under the Municipal Elections (Corrupt Practices) Act, 1872, the barrister in delivering judgment said that he found the councillor guilty of personal bribery, and that all the costs of the inquiry were to be borne by him, and made an order in writing for the payment by the councillor of certain costs under s. 19 of that Act. The written order made no provision for the remuneration and allowances to the barrister and other persons under s. 22

NOTE.

Sect. 101 (corresponding to the text). The Treasury paid the amount of such remuneration and allowances, and certified the payment to the borough treasurer, and required him to repay them the amount out of the borough fund. A rate was accordingly made and levied. The Treasury afterwards, on receiving from the barrister a letter stating that he had always intended to visit all the costs upon the councillor, and had said so in giving judgment, cancelled their certificate, and the borough corporation abandoned the rate and returned the sums levied to the ratepayers. Afterwards, the Treasury, finding that the barrister had made no written order for the payment of the remuneration and allowances, issued a fresh certificate requiring the borough treasurer to repay them the amount out of the borough fund or rates. These facts being found upon a return to a mandamus commanding the treasurer to repay the Treasury, it was held that no valid order had been made by the barrister for the payment of the remuneration and allowances by the councillor; that the election court was a court of record, and that neither the High Court nor the Court of Appeal on the return could amend the order so as to make it include such payment; that the act of the Treasury in certifying was not a judicial act, and that they had the power to make a second certificate, and were entitled to a peremptory mandamus compelling the treasurer to repay to them the amount of such remuneration and allowances out of the borough fund or rates, and compelling the corporation to order such amount to be levied by a borough rate. R. v. Maidenhead (Mayor of ), 9 Q. B. D. 494; 51 L. J. Q. B. 444; 46 J. P. 724.

Acts done pending a petition not

102. Where a candidate who has been elected to a corporate office is, by a certificate of an election court or a decision of the invalidated. High Court, declared not to have been duly elected, acts done by him in execution of the office, before the time when the certificate or decision is certified to the town clerk, shall not be invalidated by reason of that declaration.

Provisions as

to elections in the room of persons unseated on petition

Prohibition of

See also s. 42 (1), ante, p. 278.

103. Where on an election petition the election of any person to a corporate office has been declared void, and no other person has been declared elected in his room, a new election shall be held to supply the vacancy in the same manner as on a casual vacancy (a); and for the purposes of the election any duties to be performed by a mayor, alderman, or other officer, shall, if he has been declared not elected, be performed by a deputy, or other person who might have acted for him if he had been incapacitated by illness (b).

(a) As to the manner in which casual vacancies are to be filled up, see s. 40, ante, p. 277, and s. 66, ante, p. 291, and the notes to those sections.

(b) The reference to the mayor and aldermen must, with regard to elections of county councils, be read as a reference to the returning officer (see the Local Government Act, s. 75, sub-s. (4), ante, p. 142).

104. A person who has voted at a municipal election by ballot disclosure of shall not in any proceeding to question the election be required to state for whom he has voted.

vote

See also s. 12 of the Ballot Act, 1872, ante, p. 213.

124.-(1.) It shall not be lawful for a municipal corporation, Prohibition of expenditure or the council of a borough, or a corporate officer, or a trustee, or of corporate other person acting for a municipal corporation, to pay or apply funds on parliaany money, stocks, funds, securities, or personal property, of or mentary held in trust for the corporation, in payment of any expenses elections. occasioned by a parliamentary election or incurred by any person offering himself as a candidate at or before a parliamentary election.

(2.) Any bond, covenant, recognizance, or judgment given by a corporation, council, officer, trustee, or person as aforesaid, for securing payment of such expenses, shall be void.

(3.) Any payment, application, bond, covenant, recognizance, or judgment made or given by a corporation, council, officer, trustee, or person as aforesaid, for inducing any person to labour in a parliamentary election at a future time, or to pay or incur expenses as aforesaid at a future time, shall be deemed to be forbidden and declared void by this section, although colourably made or given for any other cause or consideration.

(4.) Any mortgage or other disposition of corporate land for securing or satisfying any expenses or engagements incurred or to be incurred as aforesaid, and any estate or charge thereby created, shall be void.

(5.) Any resolution, bye-law, or other proceeding of a council, purporting to direct or authorize any payment or thing forbidden by this section, or made or adopted for evading the provisions thereof, shall be void.

(6.) If any member of a municipal corporation authorizes or directs any payment or application forbidden by this section, or assents to, or concurs or participates in, any affirmative vote or proceeding relating thereto, or signs or seals in his individual capacity, or affixes the corporate seal to, any instrument by this section declared void, he shall be guilty of a misdemeanor, and, on conviction thereof in the High Court, shall, in addition to such punishment as the court awards, be for ever disabled to take, hold, or exercise any office in the same corporation.

(7.) If any corporate officer, trustee, or other person as aforesaid makes, or concurs in making, any payment or application of money or property as aforesaid, he shall be deemed to have done so in his own wrong, and he shall be individually liable to repay and make good the amount or value thereof to the corporation, notwithstanding any release or pretended indemnity given to him in the name or on behalf of the corporation.

Sect. 124 (8).

(8.) Any two or more burgesses may bring and prosecute any action in the name of the corporation against any officer, trustee, or person making any illegal payment or application as aforesaid, as if they, their executors and administrators were jointly and severally appointed the irrevocable attorneys of the corporation for that purpose; but the plaintiffs shall, on the application of the defendant, give reasonable security, as the court directs, for costs, as between solicitor and client.

(9.) Nothing in this section shall affect the provisions of the Ballot Act, 1872, or of any other Act for the time being in force regulating the payment by the returning officer or otherwise of expenses relating to parliamentary elections.

(a) This is the only section of Part V. which is applied to county councils. See the Local Government Act, s. 75, ante, p. 141.

Prosecution

of offences

and recovery of fines.

Exclusion of certiorari.

LEGAL PROCEEDINGS.

219.—(1.) In summary proceedings for offences and fines under this Act the information shall be laid within six months after the commission of the offence (a).

(2.) Any person aggrieved by a conviction of a court of summary jurisdiction under this Act may appeal therefrom to a court of quarter sessions (b).

(3.) Any fine incurred under this Act and not recoverable summarily may be recovered by action in the High Court (c).

(a) This provision was unnecessary, having regard to 11 & 12 Vict. c. 43, s. 11, and 42 & 43 Vict. c. 49. s. 31.

(b) The procedure on such appeals is regulated by 42 & 43 Vict. c. 49, s. 31.

(c) As to the procedure in actions against corporate officers, see s. 224, post.

220. A conviction, order, warrant, or other matter made or done, or purporting to be made or done, by virtue of this Act shall not be quashed for want of form, and shall not, unless it is an order of the council for payment of money out of the borough fund, be removed by certiorari or otherwise into the High Court.

Notwithstanding this provision, a writ of certiorari will be granted where the proceedings show on the face of them a want of jurisdiction. R. v. Gosse, 3 E. & E. 277; 30 L. J. M. C. 41; 3 L. T. (N.s.) 404; Broughton Local Board, Re, 12 L. T. (N.S.) 310; R. v. Staffordshire (Justices of), 16 L. T. (N.s.) 430; R. v. Rose, or Wood, 5 E. & B. 49; Colonial Bank of Australasia v. Willan, L. R. 5 P. C. 417; 43 L. J. P. C. 39; 30 L. T. (N.s.) 237; 22 W. R. 516. In the case last mentioned it was laid down that when