Nomination paper.

wrong voters' list has been used. Richards, C. J., in the Monck case (u) said, "I am now considering this point, assuming that the last list sent in is irregular, and not the one which the statute requires. I think the party desirous of setting aside the election must go much further, and shew that some voter who by that list was entitled to vote had tendered his vote, and that it was rejected, and that there are a sufficient number of such votes to affect the result of the election. Taking an extreme view in favour of the petitioner, he would be bound to shew that there were persons whose names were on the proper list, and who were entitled to vote, but did not vote at the election, and that there were a sufficient number of such voters to affect the result, supposing they had all voted for the petitioner."

Where, however, 35 persons whose names were on the list used, but not on the list which should have been used, voted for the respondent, and these being struck off, the respondent was left in a minority of 19, the other candidate for whom the seat was claimed was declared elected (v).

The nomination paper of B., one of the candidates at an election, was signed by twenty-five persons, and had the affidavit of the attesting witness duly sworn to as required by the statute. The Election Clerk found that one of the twenty-five persons was not entered on the voters' lists, and thereupon the Returning officer and Election Clerk compared the names on the nomination paper with the certified voters' lists in his possession, and on finding that only twenty-four of the persons who had so signed were duly qualified electors, he rejected

(u) 32 U. C. Q. B. 153. A majority of those votes appearing on the list used, but not upon the list which should have been used, were polled for the petitioner's side. (v) Prince Edward Election (2) Ont. 1 H. E. C. 160.

cer both a min

isterial and a

judicial officer.

B's. nomination paper, and returned the respondent. It was held that he should have received the nomination paper; and that if the election had gone on, the defect in the nomination paper would not, according to the 80th section of the Dominion Elections Act, have affected the result of the election. Wilson, J., however, in giving judgment said: "I am of opinion the Returning officer is both a ministerial and a judicial officer. He has not Returning offnow, as formerly, to hold an inquisition into the capacity or qualification of a candidate or voter; but I feel assured if a person appeared and was nominated, and such candidate were a woman or a mere child, that the Returning officer could decline to receive such nomination, and in like manner he can decline to receive the nomination of a Chief Justice or the Speaker of the Senate. I think also he may refuse a nomination paper signed by less than twenty-five electors, because the Act requires that the nomination shall be by twenty-five. I am disposed to think, too, he can reject a paper signed by twenty-five, if it were declared by the candidate that the paper was a sham; that the names were those of persons who were not electors at all, and never had been; or that half the names were forgeries; and if there were good reasons for the Returning officer to believe that statement, and he did believe it. . . . . I think, however, with much hesitation, that the defect in this case, which I have no doubt exists, was one to which the Returning officer should not have yielded" (w). No nomination paper is required under the Ontario Act.

point financial

It has been held that an omission by a candidate to omission to apappoint an agent for election expenses on the day of agent. election will not render his nomination bad (x).

(w) South Renfrew (2), 1. H. E. C. 705.

(x) Mayo 2 O'M. & H. 191.

Nomination pa- A nomination paper, duly signed, and accompanied by

per, acceptance,

sential under

and deposit es- the consent in writing of the person nominated (unless Dominion Act. he be absent from the Province, when such absence shall

be stated in nomination paper), and a deposit of $200 must, however, be handed to the Returning officer before the close of the time allowed for nomination, to render the nomination valid under the Dominion law (y).

A Returning officer is justified in refusing to count the votes contained in an unsigned statement from a DeputyReturning officer, to which the affidavit prescribed by the Act is not annexed (2).

(y) 37 Vic. c. 9, s. 19; 45 Vic. c. 3, s. 8.

(z) Bothwell, 8 Sup. Ct. judgment of Galt, J., p. 686.

CHAPTER VI.

BALLOT PAPERS.

Deputy-Retur'g

As the question as to which ballots should be counted. and which rejected at the close of the poll, as well as on a recount, is a most important one, both to the election. officers and to candidates and their agents, a summary of the decisions arrived at by the Courts, upon the subject, will be here given. The effect of mistakes by Mistakes of Deputy-Returning officers in omitting to initial the ballot officers. papers or in numbering them has been already considered (a). The effect of mistakes or ignorance on the part of voters remains to be considered. In former times there were considerable differences between the Dominion and Ontario laws regarding ballots, but the laws of the Ontario laws Dominion and Province have now so far been assimilated

(b), that the decisions may be considered as applicable to elections under either law.

Sir W. J. Ritchie, Chief Justice of the Supreme Court, Rule laid down in the Bothwell case (c) says, "After a good deal of con- Court as to bal

by Supreme

(a) See "Penalties under Dominion Laws" note (p) page 318 ante, also "Conduct of the Election," ante.

(b) Sec. 41 Vic. (Dom). c. 6, s. 6; Rev. Stats. Ont. c. 10, s. 97, amended by 42 Vic. (Ont.) c. 4, s. 13.

(c) 8 Sup. Ct. at p. 696.

The rule laid down by the Chief Justice was concurred in by a majority of the Court, viz: Fournier, Henry and Gwynne JJ.

lot marks.

Ballots, when good.

sideration, I find it impossible to lay down a hard and fast rule by which it can be determined whether a mark is a good or a bad cross. I think that whenever the mark evidences an attempt or intention to make a cross, though the cross may be in some respects imperfect, it should be counted, unless from the peculiarity of the mark made, it can be reasonably inferred that there was not an honest design simply to make a cross, but there was also an intention so to mark the paper that it could be identified, in which case the ballot should, in my opinion, be rejected. But, if the mark made indicates no design of complying with the law, but, on the contrary, a clear intent not to mark with a cross as the law directs, as for instance, by making a straight line or a round O, then such non-compliance with the law, in my opinion, renders the ballot null; the irresistible presumption from such a plain and wilful departure from the terms of the Statute being that it was so marked for a sinister purpose" (d). In pursuance of the principle thus adopted, his lordship held to be

Valid Ballots.

1.-A ballot marked with an inverted V.

2. A ballot marked with more than one cross for the same candidate.

In the Queen's County case (e) ballots containing names of four candidates were beld valid in the following cases:

3.-Ballots containing two crosses, one on the line above the first name and one on the line above the

(d) The Court declined to follow Woodward v. Sarsons, L. R. 10 C. P. 733 upon this point.

(e) 7 Sup. Ct. 247.