Registration of electors Parochial electors Separate list of-Claims to be on separate list of parochial electors-Ownership and occupation claimants-Jurisdiction of revising barrister to revise lists-Local Government Act 1894 (56 & 57 Vict. c. 73), ss. 2, 44. In the revision of the voters lists for counties under the Registration Acts, the revising barrister has jurisdiction and is bound under the Local Government Act 1894 to revise the separate list of parochial electors being persons entitled to vote as parochial electors only in respect of the ownership of property in the parish; also the parochial electors lists of claimants being the lists of ownership claimants who claim to be entered on the separate list of parochial electors in respect of the ownership of property in the parish; and the parochial electors lists of claimants being the lists of claimants who claim to be entered on the separate list of parochial electors in respect of the occupation of property in the parish. RULE for a mandamus to the revising barrister appointed to revise the lists of voters in the Tewkesbury and Stroud Parliamentary Divisions of the county of Gloucester, commanding him to revise the parochial electors lists in the said divisions, and hear and determine the claims of persons to have their names entered in the said lists in respect of the ownership and occupation of property in these divisions, and to hold a court in that behalf. The rule was obtained at the instance of the clerk of the peace for the county of Gloucester under the direction of the county council for the county, and in the affidavit made by him in support of the rule the facts were stated as follows: At the revision of the lists of voters for one of the parishes in the Stroud Parliamentary Division the jurisdiction of the revising barrister to revise the ownership portion of the parochial electors list-there being no list of claimants-was disputed by one of the political agents, but was supported by the other political agent, who requested the barrister to revise the list. revising barrister adjourned the consideration of the matter, and finally gave his decision that he had no jurisdiction to revise the list and declined to revise it, and returned the same to the clerk of the county council unsigned. He (a) Reported by W. W. ORR, Esq, Barrister-at-Law. The {Q.B. DIV. also subsequently decided, for the same reason, that he had no jurisdiction, to revise the list of the ownership and occupation portions of the parochial electors lists, and the ownership claims to be placed upon such lists for certain parishes in the Tewkesbury Division. There were about 127 names of electors in the parochial electors lists in the Tewkesbury Division and about sixty-six ia the Stroud Division affected by the decision; and no objection was made to any of these names by the overseers or any other person. The lists which the revising barrister declined to revise were these: 1. Separate list of parochial electors, being persons entitled to vote as parochial electors only, in respect of the ownership of property in the parish of Rodborough. 2. List of ownership claimants, being the list of persons claiming to be entitled to have their names entered in the parochial electors lists in respect of the ownership of property situate in whole or in part within the parish of Alkington. Part A of this list was headed "Parliamentary List Claims," and this part was duly revised. Part B of the list was headed Parochial Electors List Claims," and this was the part of the list which the revising barrister refused to revise. 3. List of claimants (parochial electors list), being the list of persons claiming to have their names entere in the parochial electors' list as parochial electors only in respect of the occupation of property in the parish of Prestbury. These three lists the revising barrister held that he had no jurisdiction to revise and he declined to revise them, and upon the clerk of the peace applying to him to revise the lists he again declined to do so, whereupon the above rule for a mandamus was obtained. The Local Government Act 1894 (56 & 57 Vict. c. 73) provides: Sect. 2.-(1) The parish meeting for a rural parish shall consist of the following persons, in this Act referred to as parochial electors, and no others, namely, the persons registered in such portion either of the local government register of electors or of the Parliamentary register of electors as relates to the parish. Sect. 44-(1) The local government register of electors and the Parliamentary register of electors, so0 far as they relate to a parish, shall together form the register of the parochial electors of the parish; and any person whose name is not in that register shall not be entitled to attend a meeting or vote as a parochial elector, and any person whose name is in that register shall be entitled to attend a meeting and vote as a parochial elector unless prohibited from voting by this or any other Act of Parliament. (4) Nothing in any Act shall prevent a person, if duly qualified, from being registered in more than one register of parochial electors. (5) Where in that portion of the Parliamentary register of electors which relates to a parish a person is entered to vote in a polling district other than the district comprising the parish, such person shall be entitled to vote as a parochial elector for that parish, and in addition to an asterisk there shall be placed against his name a number consecutive with the other numbers in the list. (6) Where the revising barrister in any list of voters for a parish would-(a) in pursuance of sect. 7 of the County Electors Act 1888, place an asterisk or other mark against the name of any person; or (b) in pursuance of sect. 4 of the Registration Act 1885, erase the name of any person otherwise than by reason of that name appearing more than once in the lists for the same parish; or (c) in pursuance of sect. 28 of the Parliamentary and Municipal Registration Act 1878, as amended by sect. 5 of the Registration Act 1885, place against the name of a person a note to the effect that such person is not entitled to vote in respect of the qualification contained in the list-the revising barrister shall, instead of placing that mark or note or erasing the name, place against the name, if the person is entitled to vote in respect of that entry as a county elector or burgess, a mark signifying that his name should be printed in division 3 of the list, or if he is entitled to vote only as a parochial elector, a mark signifying that he is entitled to be registered as a parochial elector, and the name so marked shall not be printed in the Parliamentary register of electors, but shall be printed, as the case requires, either in division. 3 of the local government register of electors, or in a separate list of parochial electors. (8) Such separate list shall form part of the register of parochial electors of the parish, and shall be printed at the end of the other lists of electors for the parish, and the names shall be numbered consecutively with the other names on those lists, and the law relating to the register of electors shall, with the necessary modifications, apply accordingly, and the lists shall for the purposes of this Act be deemed to be part of such register. (9) Any person may claim for the purpose of having his name entered in the parochial electors list, and the law relating to claims to be entered in lists of voters shall apply. (10) The clerk of the county council or town clerk, as the case may be, shall, in printing the lists returned to him by the revising barrister do everything that is necessary for carrying into effect the provisions of this section with respect to the persons whose names are marked by the revising barrister in pursuance of this section. H. Sutton, for the Treasury, showed cause.Parish Councils were created by the Local Government Act of 1894, and these parochial electors were brought into existence by that Act. That Act of 1894 did not provide for the separate revision by the revising barrister of any lists of parochial electors, nor did it give the revising barrister any jurisdiction to revise any such lists of parochial electors. My two points are thesefirst, that the Local Government Act of 1894 did not direct the overseers or any other officials to prepare a list of any sort or kind to be placed before the revising barrister for revision; and, secondly, that the only lists which the revising barrister was authorised or entitled to revise before the Act of 1894 was passed were (1) the ownership lists relating to Parliamentary and local government votes-that is, the lists of those claiming a Parliamentary or local government vote in respect of the qualification by ownership; and (2) the occupation lists relating to Parlia mentary and local government votes-that is, the lists of those claiming the like votes in respect of an occupation qualification. Those were the only two lists (putting aside the lodgers list) which up to 1894 the revising barrister had to revise. Then, coming to the Act of 1894, sect. 1 provides for parish meetings and parish councils, and sect. 2 (1)-which is important says that the parish meeting shall consist of the parochial electors and no others, namely, the persons registered in such portion of the local government register of electors or of the Parliamentary register of electors as relates to the parish. Sect. 43 removes the disqualification of married women, and sect. 44 (1) provides for the register of parochial electors of the parish, and says that [Q.B. DIV. the local government register of electors and the Parliamentary register of electors, so far as they relate to the parish, sball together form the parochial electors of the parish, and that any person whose name is not in that register sball not be entitled to vote as a parochial elector. That sub-section is important as showing that the parochial electors are to be taken from the Parliamentary and local government registers relating to the parish, and the register means that which is made up by the clerk of the peace after the revision. Then sub-sects. 5 and 6 of this section show how this separate list of the parochial electors is to be arrived at, by placing a mark opposite the name of the person entitled to be registered as a parochial elector, then the names so marked are to be taken out of the Parliamentary register, and are to be printed either in division 3 of the local government register, or in a separate list of parochial electors. Those two sub-sections are important as showing that the only lists the revising barrister has to revise are the Parliamentary lists and the lists of county electors under the County Electors Act 1888, and it is from these two lists that the separate list of parochial electors is afterwards arrived at by the clerk of the county council in printing the lists (sub-sect. 10), Sub-sect. 9 shows that any person may claim for the purpose of having his name entered in the parochial electors list but that bas to be read in connection with the previous sub-sections. The result is that, taking these provisions together, if a person claims to be on the parochial list only he claims on the Parliamentary or local government list, and then, if he sustains his claim to be a parochial elector, the revising barrister places a mark opposite his name signifying that he is a parochial elector only, and afterwards a list of these names is printed separately and forms the parochial electors list; and if a person on this list wishes to be on the list for the following year, then the procedure he has to follow is that he again claims to be on the Parliamentary register, from which he may be again transferred to the parochial list. There is, therefore, in the Act of 1894 no provision for the separate revision of a separate list of parochial electors, and there is no provision for dividing the ownership list into the two portions of Parliamentary claims and parochial electors' claims only. The revising barrister was therefore right in refusing to revise claims to be on the parochial register unless they were made for the Parliamentary or local government register, thence to be transferred to the separate parochial register; and he was also right in holding that when he had revised the ownership and occupation lists he had done all that these Registration Acts imposed on him. Macmorran, Q.C. (Roskill with him) in support of the rule. Dealing in the first place with the ownership list, which is to be distinguished from the occupation list, before the Act of 1894 was passed where a person owned property which would entitle him to be a Parliamentary voter in more than one parish in the Parliamentary division, the revising barrister would retain the name of such person on the ownership list for one of the parishes and strike his name out for the others. Then came the Local Government Act of 1894, and sect. 44 of that Act, which is the section upon which we rely, provides in sub-sect. 1 that the register of parochial electors of the parish shall consist of the local government register and the Parliamentary register so far as they relate to the parish. Then sub-sect. 4 says that nothing in any Act shall prevent a person, if duly qualified, from being registered in more than ne register of parochial electors. Before the Act of 1894 the revising barrister would have truck out the name from the ownership list in all the parishes except one, but sub-sect. 6 of sect. 44 deals with that so far as regards parochial electors, and with regard to them the revising barrister, instead of striking out the name in all except one parish, is to put a mark opposite the name signifying that the person is entitled to be registered as a parochial elector, and these names so marked are taken out and are printed by themselves in the separate list of parochial electors. We have here two lists, the Parliamentary register of electors and the separate list of parochial electors, and when in the following year the ownership list of the parish is sent to the revising barrister for revision it is sent in two parts, the one part containing the names of those entitled to vote as Parliamentary voters, and the second part containing the names of those entitled to vote as parochial electors only. Sub-sect. 8 is important. It provides that "such separate list "-that is, the separate list of parochial electors-" shall form part of the register of parochial electors of the parish. and shall be printed at the end of the other lists of electors for the parish, 66 and the lists shall, for the purposes of this Act, be deemed to be part of such register." Therefore by this sub-section the separate list of parochial electors entitled to vote in respect of an ownership qualification is to form part of the register, and the revising barrister is bound to revise that part, as being a part of the register, in the same way that he is bound to revise the other part of the register which is sent to him, namely, the former part which relates to the ownership voters for Parliament. Then we come to sub-sect. 9, which shows that if a person knows that he or she is entitled to be on the list of parochial electors, he or she can claim to be on that list of parochial electors without being on any other list. The parochial electors list" in this sub-section means the separate list of parochial electors referred to in the preceding sub-sections; and we see by the form of precept of the clerk of the county council to the overseers given in the Registration Order 1895, sched. 1, part 1, r. 2 (c) (Rogers, p. 625), that the expression "ownership portion of the register" means the portion of the register of electors which contains the names of persons entitle to vote either as Parliamentary or parochial electors in respect of an ownership qualification in the parish, and (d) the expres sion "list of ownership claimants" means the list to be made of persons who have claimed to vote either as Parliamentary or parochial electors in respect of an ownership qualification in the parish. Also the forms as to ownership claims to be given by the overseers and claimants respectively (Registration Order 1895, sched. 1. forms Nos 1 and 2, Rogers, pp. 630-1) show clearly that a person may claim to be on the separate parochial list in respect of the ownership of property in the parish With regard to claims to be on the parochial electors list in respect of the occupation of property, sub [Q.B. DIV. sect. 9 of sect. 44 gives the right to claim in such cases, as well as when the claim is in respect of ownership qualification. This right to claim is recognised in the Registration Order 1895, where a form is expressly given for the list of claimants (parochial electors list) to be entered in the parochial electors list as parochial electors only: (form K, No. 5, sched. 2, Rogers, p. 666). The revising barrister is bound to revise the claims to be on the parochial electors list, whether these claims are in respect of an ownership or an Occupation qualification. This is clearly shown by sect. 44, on which we rely, and there is no contradiction between that section and sect. 2 (1). If he had not jurisdiction to revise these lists, then it would follow either that a person entitled to be a parochial elector might be disfranchised altogether, or, if he happened to be put on the parochial electors list, there would be no power to remove his name from that list in succeeding years, although he might have parted with his qualification. RIDLEY, J.-This is a matter of first impression and it is a matter of some importance, and possibly, if there were no urgency about it, we should have taken time to consider it, not for the reason that there is any doubt in the mind of the court on the subject, but for the purpose of putting in writing, more accurately probably than one would be likely to express it in words, what the view of the court is concerning it. The ques tion is whether the revising barrister for a particular district is to take into consideration, first of all, the ownership list relating to parochial electors only; secondly, the ownership claimants list relating to parochial electors' claims only; thirdly, the claimants list relating to occupiers for parochial electors only. We are of opinion that the intention of the Local Government Act 1894 is that he should do so. The Act contains, in the first place, sect. 2, upon which reliance might be placed as having a contrary effect, where it says that the parish meeting shall consist of the parochial electors and no others and that the parochial electors are to be such persons as are registered in such portions of the local government and Parliamentary registers of electors as relate to the parish. I can well understand that, upon this Act coming into operation, that might be used as an argument that there was nothing else to be considered by the revising barrister, because it says that the persons registered are to be in the Local Government register of electors or in the Parliamentary register of electors as regards the parish. Those words in that section are certainly subject to the other provisions of the Act, and when we come to look at those other provisions we can see that those words cannot have been intended to be used in that sense. because there is a special provision in sect. 43 which shows that some other persons at all events may be entitled to be parochial electors who are not upon the Parliamentary register or upon the register of voters for the county council-that is to say, married women; and there are others, no doubt, who are entitled to be parochial electors for each parish who are not entitled to vote for the county by reason of the other provisions of the Act which prevent a person from voting for more than one division of a county for Parlia ment or for a county council at the same election. There may be others also to whom it is unneces sary to refer. I think, therefore, sect. 2 has not the effect contended for in that sense, and although prima facie one might be taken by an argument based upon it, it is not the real meaning of that section. When we come to consider the question as to whose duty it is-if it be the duty of anyone-to revise the list of parochial electors, it seems to me that sect. 44 and the Registration Order 1895 are the matters which have to be considered. Let us see generally, without referring specially to the words of that section, what is the duty cast upon the revising barrister in this respect. Dealing for the present with county voters, and omitting borough voters, the revising barrister has put before him a list of county voters for Parliament and county voters for the county council; and these lists were put before him in former years before the passing of the Local Government Act of 1894. These he had to revise, and no question ever arose on that subject; but when the new lists of parochial electors had to be made either there had to be machinery provided from the very beginning under which such lists were to be formed separately by the overseers or by the clerk of the peace according to whether they were owners or occupiers, or else they had to be formed from the materials already provided to be sent before the revising barrister with such alterations as were necessary. The former method was not possible without, as it appears to me, passing over to the clerk of the peace or to the overseers duties with regard to which the discretion of the revising barrister ought to be exercised. The revising barrister therefore had to form under the new law a parochial list by consideration of the former lists, and it was only by the marking of the Parliamentary ownership list and by cutting out of it those who were not entitled to vote because their names were on the list for other divisions, that he arrived at the ownership list of the parish, and in arriving at the ownership list of that parish that was the form relied upon. That is clearly part of the history of this matter, and it results from what the revising barrister does at the hearing upon the ownership list which has been formed and put before him. With regard to that part of the case in the next year that ownership list comes before him as furnished to him by the overseers with indications and marks showing that certain names represent those who are dead and those who have removed, and that the list requires rectification. It is argued by Mr. Sutton that the revising barrister took the right view in declining to consider that list because there is no part of the Act which expressly brings it within his jurisdiction. But it appears to me, when we consider the wording of sect. 44 and its various sub-sections, that that part of the list is made a portion of the register, and that the old ownership list comes within sub-sect. 8 because it is the portion of the list that is intended to be the list for parochial voters. It appears to me, therefore, that when the revising barrister has got that list brought before him it is a part of the register, and it is as such that he has to consider it. He has to rectify it in point of fact according to what his discretion may be as to the evidence, whether by marks or obliterations, put before him by the overseers. If he does not do so, it appears to me that there is no machinery at all provided for so doing, and the result would 66 [Q.B. DIV. be that it would remain and would continue to be the list of former years. Surely it is not in accordance with the general intention of this Act of Parliament to say that such a conclusion must be drawn from it. It was intended to put all the lists, including that of parochial electors, upon the same basis and under the same authoritythat is to say, that they should all come within the discretion of the revising barrister. I think that it comes within the special words of sub-sect. 8. So much as regards the list of voters which results from former years. With regard to claims both as to owners and occupiers it appears to me that the case is perfectly clear, and in fact it is hardly capable of argument. The provisions of the Act are simply these, that whereas there may be persons whose names do not appear on either the Parliamentary or the local government voters lists, those persons may claim in respect of a vote in the parish only, and sub-sect. 9 meets that very case as it says that any person may claim for the purpose of having his name entered in the parochial electors list, and that the law relating to claims to be entered in lists of voters shall apply. If a person enters a claim to be on the parochial list, it is provided that he shall enter it in the forms which are given in the Registration Order 1895; if he claims as an owner he follows the form in that order, form No. 2, sched. 1 (Rogers, p. 631), and if he claims as an occupier then he follows the form in the order, form K, No. 5, sched. 2 (Rogers, p. 666), being the form for the List of Claimants (Parochial Electors List)." There the person is claiming to be put on the parochial electors list, and that form adds in a note: "Form No. 5 applies to persons who claim to have their names entered in the parochial electors list as parochial electors only"; and it also adds that "A copy of the claim must be entered in this form." Then the claims on either owners or occupiers list are put before the revising barrister and are supposed to form part of the complete list which will ultimately be made up under sub-sect. 10 by the clerk of the county council or by the town clerk, as the case may be. The question which is argued by Mr. Sutton is rather raised in this way. He says: "True it is that that claimants list is to come before the revising barrister with a provision that the law relating to claims to be entered in lists of voters shall apply"; but he says it is not proper to consider that list unless it is put forward as a portion of the other lists which according to the general law are to be dealt with by the revising barrister. I think that is not in accordance with the general spirit of the Local Government Act 1894 on this subject, which intends that the revising barrister shall revise all the lists, including the separate list of parochial electors. Apart, however, from that, the forms I have alluded to and sub-sect. 9 are precise to this effect, that a person so claiming is to claim in the form as belonging to the parochial electors list also, and, if he does so in accordance with the form provided by the Act, then "the law relating to claims to be entered in lists of voters shall apply." I do not see how we could properly read those words unless it gives the revising barrister the duty of revising, and I gather from Mr. Sutton that he would not have contended to the contrary if the claims had been made as a part of the two general lists. That objection seems to me not to have much weight because of the words of the Act of Parliament itself and the form in which it is provided that claims shall be made. When all has been done by the revising barrister, then it becomes the duty of the authorities to make out a separate list of parochial electors, which includes, of course, the list of claims as revised and the list of those who have been on the list for former years. Under these circumstances, although the matter is one which I can well understand might upon argument take a different shape in the mind of the revising barrister, it seems to me that the better and the right course to pursue according to law is to deal with the separate lists as if they formed part of the register to be put before the revising barrister, and it is his discretion upon which the Legislature relies, and his is the duty to see that the lists are correctly drawn up. For these reasons I am of opinion that the rule ought to be made absolute. DARLING, J.-I am of the same opinion. It is perfectly clear, and the contrary is not argued, that it is the duty of the revising barrister to revise the parochial register. He did revise the list so far as it related to parochial electors who were also Parliamentary voters-persons described as ownership voters and persons entitled to vote as Parliamentary voters and as parochial voters. So far as the list consisted of those owners who were entitled to vote both ways, he revised the register, but when it came to revising the register as regards persons who were described as owners but entitled to vote as parochial electors only, he came to the conclusion that he had no jurisdiction in regard to that particular list. In that, I think, he was wrong. It appears by the statute that that which he declined to revise was a portion of the register, and therefore if he did not revise that portion he did not revise the register. He only revised a portion of the register, and he did not revise the whole of the register unless he revised all portions of it. Therefore it appears to me that he was distinctly wrong in refusing to revise a portion of it. So much for ownership. As regards the other part of the case -namely, the refusal to revise the claims-I think that the case is hardly arguable, and, indeed, Mr. Sutton did hardly argue it after it was pointed out what would be the result of the refusal of the revising barrister to do so having regard to the provision where it is distinctly enacted that any person may claim for the purpose of having his name put on the parochial electors list, and that the law relating to claims to be entered in the list of voters shall apply. He is bound, it seems to me, to revise those claims, and, if there were any doubt about the matter, there is the Order in Council, the Registration Order of 1895, which provides the form in which persons are to send in these claims, which must be revised in some way, and nobody else, as has been pointed out, could revise them. I think really, after the argument we have had addressed to us, that the case is a very clear one. Rule absolute for mandamus. Solicitors for applicant for rule, Field, Roscoe, and Co., for E. T. Gardom, Gloucester. Solicitor for the respondent, The Solicitor to the Treasury. [DIV. PROBATE, DIVORCE, AND ADMIRALTY DIVISION. DIVORCE BUSINESS. Tuesday, Aug. 1, 1899. (Before BARNES and BUCKNILL, JJ.) Desertion-Proceedings before justices-Summary On a certain date a wife, living apart from her husband, went to his house, accompanied by a policeman, and asked to be taken back. The husband refused. The wife took out a summons for desertion under the Summary Jurisdiction (Married Women) Act 1895. At the hearing of the summons the justices refused to consider evidence tendered by the husband of circumstances prior to the date of the wife's demand and the husband's refusal, held that the refusal constituted desertion, and the husband ordered to pay weekly maintenance to the wife. The husband appealed. Held, that the magistrates were wrong in rejecting the evidence tendered by the husband; that the refusal to take back the wife did not necessarily in itself amount to desertion; and that the case ought to be remitted to the justices. THIS was an appeal from an order dated the 6th July 1899 and made by the justices sitting in Petty Sessions at Scarborough under the Summary Jurisdiction (Married Women) Act 1895. The appellant, George William Wassell, was married to the respondent, Mary Ann Wassell, in 1892. They cohabited until Sept. 1898. On the 23rd June 1899 the wife called at the husband's house, accompanied by a policeman, and asked to be taken back. The husband refused to take her back. The wife then took out a summons against the husband for desertion. At the hearing of the summons the husband admitted the wife's demand to be taken back and his refusal; but sought to give in evidence circumstances antecedent to the 23rd June 1899 as proving that such refusal did not constitute desertion. The most material facts in the evidence tendered were the e: About the 15th Sept. 1898 the husband and wife quarrelled, and the husband struck the wife. The latter declared her intention of separating from her husband and left the house. She returned the same evening, but went away again on the following day. Subsequently she only returned once to remove her bed, which she had sold. From Sept. 1898 to the 23rd June 1899 the husband and wife lived apart. The husband asserted that they did so by mutual consent, and contended that there was consequently no desertion. The justices refused to go into the evidence of any circumstances prior to the 23rd June 1899. They held that the husband's refusal on that day to receive back his wife was enough to prove desertion. They therefore held the husband guilty of desertion on and since the 23rd June 1899, and ordered him to pay 10s. a week maintenance to the wife. The husband appealed. (a) Reported by H. M. GIVEEN, Esq., Barrister-at-Law. |