Stamp the ballot paper so that official mark appears MUNICIPAL on both sides. Mark the register to denote that the voter has received a ballot paper. If required, put the questions to any person offering to vote. Give another ballot paper in place of any spoilt by Give a tendered ballot paper to any person who tendered votes list." Put a tendered ballot paper in a separate packet-not into ballot box. See official mark on every ballot paper before a voter puts it in ballot box. Mark a ballot paper for a voter if he is incapacitated by blindness or other physical cause, or being a Jew, objects on a Saturday to mark a ballot paper, or makes a declaration of inability to read, which is to be attested by the presiding officer and kept by him. Such a ballot paper is to be put by him in the ballot box, and the name and number of the voter and the reason for so marking the ballot paper is to be entered on "the list of votes marked by the presiding officer." Give person charged with personation under 6 & 7 Vict. c. 81, s. 86, into custody, and mark the vote (i) "protested against for personation." AND COUNTY COUNCILS. (h) At municipal and county council elections there seems to be no power to administer an oath, see post, p. 399. (i) At the time of that Act the mark was made against the vote in the poll book. There is nothing to indicate whether the mark should now be placed on the ballot paper, counterfoil, or register. Presumably, a mark on any of these would suffice. MUNICIPAL COUNCILS. Keep order at his polling station and remove persons misconducting themselves. Close the poll at 8 P.M., allowing voters to mark ballot papers after that time if received before. Seal the ballot box so as to prevent the introduction of other papers. Make up into separate packets the ballot papers, &c., as directed by rule 29, post, p. 400. Make out a statement as directed by rule 30, post, 3. After the poll the returning officer must- Count the votes in the manner described, post, p. 158. Not open packet of tendered ballot papers, marked Verify the ballot paper account. Reseal the packets. Declare elected the candidate who has the majority of votes. Keep the ballot papers, &c., for the prescribed time. It has been said that a returning officer may be subjected to an action if he improperly reject a voter, though without malice: Ashby v. White, 2 Lord Raym. 938. This case was, however, reversed by the House of Lords: 1 Bro. P. C. 47. And in a case before Wilson, J. (cited by Lawrence, J., in Harman v. Tappenden, 1 East, 563), that learned judge said: "All those who have acted on the case of Ashby v. White have considered that the refusal must be wilful (k) and malicious, in order to support the action. And in my (k) I.e., "contrary to a man's own conviction," per Wilson, J., AND opinion it cannot be said that because a returning officer MUNICIPAL is mistaken in a point of law, this action will lie against COUNTY him. . . . In the present case" (it was precisely COUNCILS. similar to that of Ashby v. White), "I am clearly of opinion that the want of malice is a full defence." And see Sterling v. Turner, 1 Ventr. 206; Acc. Tozer v. Child, 7 E. & B. 377; 25 L. J., Q. B. 337. But this only applies to the returning officer so far as he acts judicially. For any mistake made in the exercise of merely ministerial duties the returning officer is liable, although he act without malice: Pickering v. James, L. R., 8 C. P. 489; 42 L. J., C. P. 217. It is clear, also, that he is not liable to an action for rejecting a voter, if at the time of tendering the voter was in fact disqualified: Pryce v. Belcher, 4 C. B. 866; 15 L. J., C. P. 305. The precise character of a returning officer during an election, whether judicial or ministerial, has been the subject of much difference of opinion: Cullen v. Morris, 2 Stark. N. P. C. 577: R. v. Collins, 1 Q. B. D. 336; 45 L. J., Q. B. 413; in C. A., 2 Q. B. D. 30; 46 L. J., Q. B. 257. It is settled that when deciding upon the validity of ballot papers he exercises a judicial function: Ackers v. Howard, 16 Q. B. D. 751; 55 L. J., Q. B. 273; Pritchard v. Mayor, &c. of Bangor, 13 App. Cas. 241, H. L.; 57 L. J., Q. B. 313. For all other purposes under the Ballot Act, 1872-e. g., giving notices, providing polling stations, declaring the election of candidates, &c., he acts in a ministerial capacity. If a returning officer neglects or refuses to conduct or declare an election as required by the Act, he is to be for every such offence liable to a fine not exceeding 1007., recoverable by action : 45 & 46 Vict. c. 50, s. 75. It has been held, upon similar words contained in a former Act, that the neglect need not be culpable or wilful to support an action. A mere omission is not necessarily equivalent to neglect. Inability or superior force may excuse the non-performance of a duty by one who is willing to do it: R. v. Burrell, 12 A. & E. 460; MUNICIPAL R. v. Shore, 3 Q. B. 31; Hunt v. Hibbs, 29 L. J., AND COUNCILS. Appointment of agents. Ex. It is also provided by the Ballot Act, 1872, that any returning officer, presiding officer, or clerk, who is guilty of any misfeasance, or any wilful act or omission in contravention of that Act, is, in addition to any penalty to which he may be subject, to forfeit to any person aggrieved by such misfeasance, act, or omission, a penal sum not exceeding 1007. section 11. This section is cumulative upon the remedy at common law, for any misfeasance by him in the execution of any of his ministerial duties: Pickering v. James, L. R., 8 C. P. 489; 42 L. J., C. P. 217 (7). This section also applies 30 & 31 Vict. c. 102, s. 50: see post, p. 395. It is a misdemeanor, therefore, for a returning officer or his deputy, or their partners or clerks, to act as agent for any candidate. A heavier punishment is provided for returning and presiding officers or clerks than for other persons guilty of offences relating to ballot boxes, &c.: 35 & 36 Vict. c. 33, s. 3; post, p. 392. Where a returning officer has been guilty of irregularities, but not wilfully, the Court has frequently refused, on the hearing of an election petition, even to inflict the costs of the petitioner or respondent upon him see post, p. 275. In order to detect personation, it is provided by 6 & 7 Vict. c. 18, s. 85, with regard to parliamentary elections, that previous to the time appointed for taking the poll, candidates may appoint persons to be their agents to attend at the different polling booths for the purpose of detecting personation; and upon giving notice in writing to the returning officer, or his deputy, of the name and address of the persons so appointed, it is lawful for them to attend as such agents at the booths to which they (7) As to a returning officer absenting himself, see R. v. Backhouse, L. R., 2 Q. B. 16; 36 L. J., Q. B. 7. AND have been respectively appointed. A form of appoint- MUNICIPAL ment is given post, p. 685. This section is applied to COUNTY municipal elections by 45 & 46 Vict. c. 50, s. 86. No more than one polling agent (which is the title now given to agents to detect personation) may be employed for payment for each polling station: 47 & 48 Vict. c. 70, s. 13. Candidates at parliamentary elections may also appoint agents to attend the counting of votes, whose names and addresses must be transmitted to the returning officer one clear day at least before the opening of the poll: 35 & 36 Vict. c. 33, Schedule I., Part I., rules 31 and 52. In case such an agent dies or becomes incapable, another may be appointed: Ibid., r. 53. At a contested election of councillors, the poll is to be conducted in accordance with the provisions of the last-mentioned Act (45 & 46 Vict. c. 50), s. 58 (1); but sub-section 6 of the same section expressly enacts that nothing in the Ballot Act, 1872, is to be deemed to authorise the appointment of any agents of a candidate at a municipal election; but if appointed, and notice in writing of the appointment is given to the returning officer one clear day before the polling day, then the provisions of the Ballot Act, 1872, with respect to agents of candidates, are, as far as regards that agent, to apply. It is not compulsory to appoint either polling agents or agents for counting the votes; a candidate may himself either undertake these duties or assist his agents: 35 & 36 Vict. c. 33, Sch. I., Pt. I., r. 51. There is no provision for the appointment of an election agent or sub-agents as in parliamentary elections. Agents, however, may be appointed by a candidate; with the exception of polling agents they must not be paid: 47 & 48 Vict. c. 70, s. 13. As to the number of persons who may be employed for payment as clerks or messengers, see post, p. 190. COUNCILS. |