SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 2678, 6 September 1870, Page 2

SUPREME COURT.—IN BANCO.

Mokday, sth September.

(Before His Honour Mr Justice Chapman.)

Tha Court opened at 10 o'clock. Regina v. BAgley.—His Honour, before commencing the criminal business, delivered judgment in tbis case, as follows :—This is a rule for leave to file an information in the nature of a writ of quo warranto against the defendant, on the ground that he improperly exercises the office of CounciUor for BeU Ward in this city. The rule was obtained upon an affidavit which, after showing that the office was full, set 3 forth two voting papers, which, it is aUeged, were improperly rejected by the presiding officer, inasmuoh as they show upon their face good and valid votes for the relator. The numbers at the close of the poU were—for Bagley, 211; for Woodland, 210; so that if both or even one of the votes claimed be recorded for Woodland, the rule ought to go.

In answer to the affidavit upon which this rule was granted, Bagley has filed several affidavits, including one sworn by the presiding officer, who brings before the notice of the Court five other voting papers rejected by him, on supposed defects similar fco those which induced him to reject the two votes now claimed by Woodland. 1 must assume that these are genuine and faithful copies. No objection was urged against them on either side, and they come from a source always presumed to be impartial, and therefore entitled to confidence.

The first question which 1 have to determine is, whether I ought to look at the five voting papers from C to 6 at all. Iv the end, it may or may not make any difference in my decision, but I think it well to consider the point, as it involves an important principle. The case ot The Queen v. Quayle was relied upon for the relator, and if that case be applicable to the present, then undoubtedly the answering affidavits ought not to stand in the way of the rule. But, upon examining the facts of that case, they seem to me to be so unlike those of the present case, that neither the principle of the judgment nor the reasons for it apply. R. v. Quayle was, like this, a rule for a quo warranto, but under a system of which the ballot forms no part. The relator sought to disturb the election of the successful candidate by showing that some of his voters were disqualified, and ought therefore io be struck out. The answering affidavits showed that a number of voters equally disqualified had poUed for the relator, but the Courfc would nofc allow fchis, because (aad the reason is important) ifc would not permit electors to be disfranchised on objections which they had had no opportunity of answering. Lord Denman's words are emphatic, "lwdl not consent," he said, "to disqualify a man who has nofc been objectedto on any occasion when he had an opportunity of answering." This reason has no application to this case, in which there is no question of disqualifying, and cessante ratione cessat et etiam lex. This is merely a question as to the legal sufficiency of the ballot papers as shown upon their face. The relator singles out two. The presiding officer discloses all that he rejected. I am asked not to dis- | qualify any voter, but fco restore one or more alleged to have been improperly disqualified. I am therefore of opinion that I ought to look at all the papers, for they were all rejected upon one principle, namely that, in the Returning Officer's opinion, they did not comply with the 27th section of the Ofcago Municipal Corporations Ordinance, 1865. The next point to be ascertained is the intention of the Provincial Councii as expressed by the 27th Section of the Municipal Corporations Ordinance, 1865. When the voter presents himself, the presiding Councillor or ofcher person, having ascertained that the voter's name is on theroU, '• shall furnish to the said voter a white printed voting paper, marked with the initials of the presiding Councillor, containing the Christian and surnames of each candidate, and no other matter or thing;" and the mode of voting prescribed is this : The voter \* shall make a cross within the square opposite the name of the candidate he wishes to be elected." My firsfc impression, though not a very strong one, was that the form of a cross was essential, as the Legislature may have adopted that as the common mode of signature, and, therefore, of assent, used by unlettered persons, and it was principaUy on paper A that I hesitated not to grant the rule. But on more mature consideration, I am of opinion that the Provincial Council could have no other object than to ascertain with certainty the elector's intention, and that if a single well defined stroke within the square, without fche transverse stroke necessary to complete the cross, be enough for that purpose, the intention of the legislature is fulfilled. The Ordinance was designed to facilitate, not to obstruct, the recording of every citizen's vote, and therefore it should receive such an interpretation as is favourable to the free exercise of the franchise, having due regard to every provision necessary as a security for the certainty of the vote. I therefore think that a mark which is free from am iguity within the square opposite to the candidate's name should be accepted as conclusive of the voter's intention, though it depart from the form of a cross. A voter, not accustomed to weigh words or measure language very nicely, might reasonably think that a dash across the square was a cross within the meaning of the ordinance. The several cases cited, in which the Courts at Wes minster have decided that a signature by usual initials satisfies a statute requiring the christian names, apply in principle to this case. That a perfectly strict and literal compliance with a statute cannot be deemed essential, where it is complied with, with reasonable certainty, may be illustrated by the first part of the section cited above. H some of the papers had a more conspicuous blue or yellow tint than usual, or if some were on pinkish paper, would they be open to question on that ground ? Again, is not the square opposite tae candidates' names a departure from the words 'and no other matter or thing ?" Or in the case of a Jewish candidate, is his election to be questioned because his pre-name is not a christian name ? Would not common sense reject suoh objections ? If then we must depart from strict language in one case, why i nofc in another, when the sole object of the legislature iato secure to every oitizen his

nght of election ? I therefore think that ther© is no charm in the form of the cross, and fchat the words are not imperative. I decide S- Bwt, T UM thV ra*chi B .e, because I think the legislature Intended to civ* rt,t fullest effect to the franchise & Thcnext question is, Do other markings or scnbbhngs upon the voting paper vitSL a vote otherwiae clear ? I think they do not unless they are such aa to render it doubtful for which candidate the elector intends to vote. Is a blot to vitiate ? No one with, common sense would say so. Where then is the line to be drawn between material and immaterial markings ? I answer/where ihey cast doubt on the voter's intention ; and as he cannot be questioned, the slightest doubt ought, I think, to prevaU on the side of exclusion. The presiding officer ought not to be called upon or permitted to balance probabilities, for thafc would open the door to bias.

I am now ni a condition to examine th© vS mg, P^ 18 ann«^ed to the presiding officer s affidavit, upon the principles already mentioned. In Paper A, the intention off the voter to record his vote in favour of Woodland seems to me to be free from donbt. There is a cross in-the saaare opposite to Woodland's name, and something which ha* the appearance of a cross in Bagley's square/ but this is obliterated by a circular flourish, withjfce same red penciL I have not * doubt—l do not think any one could entertarn a doubt—that this was intended as & cancellation of tbe mark at first made opposite* to Bagley s name. Voting paper B has only one markmg on its face ; there is not even » blot elsewhere. The mark is a well defined stroke, horizontally drawn across Wood- ' land's square. This I also think expresses the intention of the voter beyond aU doubt. Voting paper C seems to me equally un^ equivocal in favour ©f Bagley. The voter has made a cross in Bagley's square with a ' black lead pencil, and has signed his name at the foot of the paper. He has then taken up the red chalk pencil and has made two other markings, both of which seem to carry out the same intention, and not in any way to weaken that intention or raise a doubt. Woodland's name is erased, and C.B;, fch* voter's own initials, are inserted in the midst of the cross. Thiß makes th© votes equal for each candidate—namely, 2115. All the others are ambiguous. Paper D has a cross in both squares. The voter then writes what I raad as Andrew Farley, written through the cross opposite Woodland's name. Who can say whether he meant that as cancelling that cross or as confirming it? Paper. E has no cross or mark of aßy kmdwithu* either square, but Bagley's name has somo red lines across it. It may mean disapproval of Bagley, but there is no mark of approval of Woodland. Now, I incline to think tliat the first of these two voters intended to vote for Bagley, and that hid name scribbled across Woodland's square was intended as » cancellation of the other cross. I incline Uso to think that the second intended to vote for Woodland. But, in using this language, I use the language of doubt, and it would be quite open to the presiding officer to think otherwise. The doubt is that which ought to exclude. As to papers F and G, they were properly rejected, Both bear a cross on each square. A vote for two is a vote for neither. Thus, then, the unambiguous voting papers, two of which were in favour of Woodland, and one of which is in favour of Bagley, render the votes equal, that is, 212 for each candidate, and therefore the rule must be mads absolute. I reserve the question of costs until I have heard both the learned counsel thereon.