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sary formalities are complied with, but that is not the point here, the question simply being whether such expenses are within the 84th section of the Act or not. Now the surveyors of highways constituted under the Highway Act 1835 are under the earlier sections (sects. 6-8) of the Act, under which they are appointed, obliged to take up the office on compulsion of a fine of 201., although, it is true, there are certain instances in which parishes may employ a paid surveyor. Then if a vestry want to stop up a highway, they are by the 84th section of the Act to direct the surveyor to apply to two justices to view the same, and shall authorise him to pay all the expenses attending such view, and the stopping up, diverting, or turning such highway.

the

These are the expenses which a surveyor would have to incur when he stopped up a highway. Then, if a private person wishes to stop up a highway, there is only one additional formality which he has to go through, and that is to require the surveyor to give notice to the churchwardens to assemble the vestry and to submit thereto the wish of such person, and then if the vestry agree to the proposal, the proceedings are exactly the same, except that "in such case expenses aforesaid shall be paid to the surveyor by the said party." What are the expenses aforesaid? They are exactly the same expenses which a surveyor would have to incur when stopping up a road at the instance of the vestry, and I do not see that it is anywhere contemplated in this section that a surveyor should go and take the advice of an independent solicitor. Then we come to the Public Health Act 1875, by the last words of the 144th section of which Mr. Turner says the authority were entitled to employ an independent solicitor. The words he relies upon are to the effect that "all ministerial acts required by any Act of Parliament to be done by or to the surveyor of highways may be done by or to the surveyor of the urban authority, or by or to such other person as they may appoint." I read these words in conjunction with the 189th section, which gives the urban authority power to appoint fit and proper persons to be medical officer of health, surveyor, inspector of nuisances, clerk, and treasurer, and such assistants, collectors, and other officers and servants as may be necessary and proper for the efficient execution of the Act. As to the point raised with respect to the taxation, I agree entirely with Mr. Asquith's argument thereupon, that it only applies to cases in which the local authority are making the application. I think therefore that these expenses are clearly not within the 84th section, and, that being so, that this appeal must be allowed with

costs.

Solicitor for the appellants, H. Smith. Solicitors for the respondents, Heath, Parker, and Brett.

Tuesday, June 10, 1884.

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*(Before FIELD, MANISTY, and LOPES, JJ.)

LINE AND OTHERS (pets.) v. WARREN AND OTHERS (resps.). (a)

Municipal election-Election of town councillors— Four candidates elected-Three only petitioned against Mayor's allowance of objections appealed against-Practice-Municipal Corporations Act 1882 (45 & 46 Vict. c. 50), ss. 87, 88, 93-Sched. 3, part 2, rr. 3, 10, 14.

At a municipal election to fill four vacancies in the office of town councillor, A., B., and C. (the respondents), and D. were elected, and a petition was subsequently presented against the election of A., B., and C. on the ground of the alleged improper allowance by the mayor of objections to the nomination papers of certain other candi dates, who were thereby prevented from going to the poll.

An application by the respondents for an order to strike the petition off the file, on the ground that D., to whose election the same objection equally applied, was not made a respondent to the petition, and that no relief could therefore be granted under it, as it did not pray that the election, as a whole, should be set aside, having been refused by Mathew, J. at chambers, the respondents appealed therefrom to this court, when it was

Held (Lopes, J. dissentiente), by Field and Manisty, JJ. (dismissing the application), that, under the Municipal Corporations Act 1882, a petition might be presented against the election of any one or more of the individuals elected, and that it was not necessary to petition against all of them, or to seek to avoid the election as a whole; and, therefore, to take the petition off the file would contravene the theory and spirit of the Act, which pointed directly to proceedings by petition against the election of any individual elected.

Sed aliter, per Lopes, J.: The petition should have included all the four elected candidates, as the election must stand or fall as a whole, and the election of three of the elected only cannot be set aside under this petition. But for the mayor's decision the result of the election might have been very different, and, as no relief can be granted under the petition, it should be struck off the file. Per totam Curiam: Where it is clearly shown on the face of an election petition that no relief can be granted under it, the court has power under the Act of 1882 to take it off the file.

APPEAL from an order of Mathew, J. at chambers, refusing to make an order to strike a petition, by certain burgesses of the municipal borough of Daventry, against the election of the three respondents to the office of councillors for the borough, off the file, on the ground that it had not been presented in the prescribed manner, and did not pray that the election should be declared roid, but only that it might be declared that the respondents were not duly elected, and that their election and return were null and void.

The facts of the case, and the grounds on which the election and return of the respondents were sought to be set aside, are fully set forth in the following petition of the six burgesses of the borough who subscribed the same:

The petition of William Line, William Henry Hence,

(a) Reported by HENRY LEIGH, Esq., Barrister-at-Law.

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William Webb the elder, Samuel George Leigh, William Dickens the elder, and John Gardner, whose names are subscribed:

1. Your petitioners are persons all of whom voted, and had a right to vote, at the above election.

2. And your petitioners state that the said election was holden on the 24th day of October and the 1st day of November, A.D. 1883, when the respondents and Edward Brooks, William White, Thomas Harris, John Merrifield, Charles Rodhouse, and William Edward Rodhouse, were candidates; and the respondents and the said Thomas Harris were declared to be duly elected.

3. The said borough of Daventry is not divided into wards.

4. On the 16th of October 1883 the town clerk of the said borough duly signed and published a notice of an election for four councillors, to fill four vacancies in the council thereof. By the said notice it was also announced that the same burgesses, or any of them, may subscribe as many nomination papers as there are vacancies to be filled, but no more; and notice was also thereby given of the time before which nomination papers were to be delivered.

5. Pursuant to the said notice, and relying thereon, nomination papers, properly subscribed by a sufficient number of burgesses, were duly delivered to the town clerk in proper time on behalf of each of the persons mentioned in paragraph 2 hereof; and none of such burgesses subscribed more nomination papers than there were vacancies to be filled up; nor did any one of them subscribe more nomination papers than one of any candidate.

6. The mayor attended at the proper time and place, pursuant to the said notice, for the purpose of hearing objections to the said nomination papers. An objection was raised by the said Edward Brooks on behalf of himself and the said respondents to the nomination paper delivered on behalf of the said Thomas Harris, on the ground that the persons subscribing his nomination paper had also subscribed other nomination papers of candidates at the said election.

7. The like objection was taken by and on behalf of the same persons to the nomination papers of each of them the said John Merrifield, Charles Rodhouse, and John Edward Rodhouse.

8. The mayor, after hearing evidence, declared himself unable to decide which of the said nomination papers had been first delivered, and gave no decision on that question; but the said Edward Brooks offering to withdraw the objection to the nomination paper of the said Thomas Harris, the mayor gave no decision upon the objection to the nomination paper of the said Thomas Harris, but permitted the objection to be withdrawn, and wrongfully allowed the objection raised to the nomination papers of the said John Merrifield, Charles Rodhouse, and John Edward Rodhouse, and refused to allow them to become candidates, or to publish their names as candidates at the said election. The names of the other persons mentioned in paragraph 2 hereof were published as candidates by the town clerk, and the said Thomas Harris and the said respondents were, after a poll, declared duly elected.

9. By reason of the matters aforesaid the said John Merrifield, Charles Rodhouse, and John Edward Rodhouse were prevented from being candidates at the said election.

10. Your petitioners allege and contend that the said election was conducted irregularly, and not in accordance with the principles laid down by the Municipal Corporations Act 1882; and that the mayor ought not to have allowed the objections, and that the same were bad in law; and that the evidence in fact showed that one of the nomination papers to which the objection was allowed was in fact the first delivered; that the mayor refused to give any decision on that question; that the said John Merrifield, Charles Rodhouse, and John Edward Rodhouse were duly nominated, and that they, or some or one of them, ought to have been permitted to be candidates at the said election; or, if they were not so duly nominated, that they and the burgesses purporting to nominate them, and the burgesses generally, were misled by the said notice so published by the town clerk as aforesaid, and that the said election and return of the said respondents was and is wholly null and void. Wherefore your petitioners pray, &c.,

That it may be declared that the said respondents were

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not duly elected, and that their said election and return was and is wholly null and void.

(Here follow the signatures of the six petitioners above named.)

The following sections of the Municipal Corporations Act 1882 (45 & 46 Vict. c. 50) and the rules laid down in the third schedule to the Act with respect to the nomination in elections of councillors, were cited and referred to in argument, and are material:

Sect. 87.-Power to question municipal election by petition.-(1.) A municipal election may be questioned by an election petition on the ground (c.) That the person whose election is questioned was at the time of his election disqualified; i.e., (d.) That he was not duly elected by a majority of lawful voters. (2.) A municipal election shall not be questioned on any of those grounds except by an election petition. Sect. 88, sub-sect. 2.-Any person whose election is questioned by the petition may be made a respondent to the petition.

Sect. 93, sub-sect. 4.-At the conclusion of the trial, the election court shall determine whether the person whose election is complained of, or any and what other person, was duly elected, or whether the election was void, and shall forthwith certify in writing the determination to the High Court, and the determination so certified shall be final to all intents as to the matters at issue on the petition.

more

Third Schedule, Part II.-Rules as to nomination in elections of councillors.-3. Each candidate must be nominated by a separate nomination paper; but the same burgesses or any of them may subscribe as many nomination papers as there are vacancies to be filled, but no 10. Where a person subscribes more nomination papers than one, his subscription shall be inoperative in all but the one which is first delivered. 14. The decision of the mayor shall be given in writing, and shall, if disallowing an objection, be final; but if allowing an objection shall be subject to reversal on questioning the election or return.

Coward for the respondents, the applicants, contended that three-fourths only of a municipal election could not be declared void on a ground which equally affected also the fourth candidate, and that such fourth candidate, viz., Thomas Harris, should have been joined as a respondent with the other three, because the election must stand good or be declared void, if at all, as a whole. The petition was bad on the face of it, and could not be amended. This objection goes to the root of the whole matter, and, if the mayor's decision was wrong, this court cannot split up the election and declare the election void as to three only of the four persons elected. By voiding the election of the three, the election of the fourth must necessarily also be avoided; yet that cannot be done, as that fourth man is not a party to the proceedings, and there is no power to unseat a person whose election is not petitioned against. Were the mayor's decision to be upset on this petition, the whole election would be null and void of necessity, inasmuch as, had the rejected candidates been allowed to stand the poll, non constat that Harris would have been elected. That alone has been held, under the Municipal Corporations Act of 1872 (35 & 36 Vict. c. 94)-the words of sect. 12 in which are identically the same as in the present Act-to be a sufficient ground for declaring an election to be void:

Budge v. Andrews and others, 39 L. T. Rep. N. S.
166; 47 L. J. 586, C. P.; 3 C. P. Div. 510;
Howes and another v. Turner and another, 35 L. T.
Rep. N. S. 58; 1 C. P. Div. 670; 45 L. J. 550, C. P.

This is a preliminary objection going to the root of the petition, and the object of it is to save the

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expense of proceeding with the special case; for, assuming the petition not to be struck off the file and the petitioners to succeed at the trial, the court would not be able to give the only relief which it was competent to them to give, namely, to declare the whole election to be void.

Yarborough Anderson and Montague Shearman, for the petitioners, contra, argued that, unless the petition were shown to be an abuse of the process of the court, it could not be struck off the file. The court should dismiss the respondents' application as being concluded by the consent order made by Field J. for a special case. The respondents might have petitioned against Harris's election had they chosen to do so; but the petitioners are not compelled by any statute to object to or question the election of a person with whose election they are satisfied. It had been said that the rejected candidates were disqualified by rule 10 of schedule 3 of the Act of 1882, which says that where a burgess subscribes more than one nomination paper, all the papers shall be inoperative except the one first delivered. But that is contradicted by rule 3, which permits a burgess to subscribe as many nomination papers as there are vacancies, but no more. The town clerk's notice followed that rule. This dilemma may be put : if the notice be good, the mayor's decision was wrong, or the petitioners are entitled to upset it on the ground of being misled, which is one ground of the petition. Another ground was that the persons petitioned against were not elected by a lawful majority. The petitioners have complied with all the statutory requirements, and the relief prayed for can be given on the petition. Sect. 87, sub-sects. (c.) and (d.) and sect. 88, sub-sect. 2, are very important and clearly show that a petition against individuals whose election or return is complained of is well warranted. [FIELD, J. referred to and read rule 14 in schedule 3, part 2.] The case of Howes v. Turner (ubi sup.), cited for the respondents, does not support the proposition for which it was cited, for there all the elected persons were respondents, and so the court had power to declare the whole election void. The petition should not be removed from the file unless no relief can be given under it; but it is clear from sect. 87 that relief can be obtained, whilst sect. 93, sub-sect. 4, shows plainly the intention of Parliament to enable the court to declare on petition the election of individuals to be void, thus giving, necessarily, the right to petition against some only of the elected candidates.

Coward in reply.-The court has no jurisdiction to entertain the point. No doubt, one or more persons might be picked out and petitioned against for bribery, but here the objection goes to the root of the whole election, and all the candidates were equally disqualified. A case in 2 O'Malley & Hardcastle's Rep. 77–178, and the Tipperary case (3 Ib. 81), cited in Leigh and Anderson's Election Law Guide, 3rd edit., show authority enough for taking the petition off the file.

LOPES, J.-I regret to say that in this case I cannot agree with my learned brothers in the decision at which they have arrived with regard to it. An application to take this petition off the file was made at chambers before my brother Mathew, and he has made no order, and thereupon it comes before us on appeal from the learned

[Q.B. DIV.

judge. Now it appears that on the 24th Oct. and the 1st Nov. last year there was an election at Daventry for the office of councillor for that borough, and it appears that there were four vacancies and nine candidates. A poll was taken. The three respondents, Samuel Warren, George Checkley, and James Bromwich were elected, and also a man named Harris, who is not a respondent, and who has not been petitioned against. It appears that at this election objections were taken to three out of the nine candidates, and that these objec tions were allowed by the mayor. Consequently, as it appears to me, the electors had no oppor tunity of voting for those three candidates, and it may be that if those candidates had gone to the poll they might have been elected, and that some of the respondents might not have been elected; and it is even possible that Harris himself might not have been elected. The mayor having allowed the objections it was open to any of the electors to petition against the election. I use that word advisedly-to petition against the election. The petitioners, however, have not petitioned against the election; or, in other words, they have not petitioned against the four candidates who were elected, but have only petitioned against three of them, omitting Mr. Harris altogether. Harris, it appears, happened to entertain the same views as the petitioners, and I presume that is the reason that he has not been petitioned against. Now the question which arises is this: Can a portion of the elected body be petitioned against, or must the petition be against the whole of them? In my opinion you must petition against the whole number of the elected body, and the petition must seek to set aside the whole election, and it cannot seek to set aside a part of it only. If you could petition against certain individuals and not against all those elected, this might happen: Harris might in this case stand elected when it may be he never would have been elected if the mayor had not erroneously allowed the objections taken to the other three candidates; or, in other words, Harris might stand elected without the names of the three other candidates against whom the mayor allowed the objections having been submitted to the constituency at all. It appears to me that this was not the intention of the Act, and I think that it cannot be done. In my opinion the petitioners are bound to seek to set aside the whole election, and cannot seek to set aside the election of certain individuals only. Then the question is, if I am right in that, whether or not this petition ought to be struck off the file. I think it should be for this reason. It appears to me that, if this petition is permitted to proceed, the court who heard it would have no jurisdiction to grant the prayer of it, and could not grant any relief under it. I think, therefore, that it would be a great waste of time, a great waste of trouble, and a great waste of expense, to permit the matter to proceed further, and therefore I think that the application made at chambers was improperly disallowed, and that this petition ought to be struck off the file.

MANISTY, J.-I am always sorry when there is a difference of opinion on the bench; but I confess that, in this case, I cannot agree with my brother Lopes in the view which he has taken. In the first place, I entertain no doubt that the court has jurisdiction to take a petition off the file if a proper cause is made out; that is to say, if on the

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face of it the court has no jurisdiction, or (which is to my mind the same thing) if on the face of it the court can grant no relief it would be an idle waste of time and money to go on with a petition which can have no result. It is enough to say that there are cases in which the court would take the petition off the file; but I am not satisfied that this is a case in which relief may not be granted. It would be quite enough if I stopped here. It would be quite enough to say that this is too doubtful a case in which to interfere. But I do not stop there, because, as at present advised, I think relief can be granted. It would, in my judgment, be a very serious and strange consequence if, in the case of a number of candidates who had been nominated, and where the whole body of electors are perfectly satisfied with nine-tenths of them, the election, without any application to set it aside in toto, could nevertheless be set aside, and no relief could be granted. It is said that, if anyone objects to the election of any one of those who have been returned, the whole election is void. It seems to me that the whole spirit of the Act is founded upon this, that the court gives relief to the extent to which parties object to the election. If in this case no one had objected it could not be contended for a moment that all the four candidates who were returned were not duly returned. It is not as if it were illegal. That would be a totally different thing. If it were illegal then it would be all by law void, and every act done would be void. But that is not so. The Act of Parliament has provided relief in case of objection, and the objection here is against three. Mr. Harris, the fourth candidate elected, is not before the court. The court, therefore, could not deal with him.

But it

is said you must have all the elected candidates before the court, and that an election cannot be declared void without making all respondents; so that all of them must be made respondents though the whole constituency is perfectly satisfied with say nine-tenths, because in their absence you cannot declare the election void. It would take a great deal to convince me that that is the law; and when I look to the terms (I do not propose to go through them) in which all the subsections of sect. 87 are couched, and the rules which have been framed in pursuance of the authority of that Act, they all, in my opinion, point to objections to certain individuals. You may object to all, but it seems to me that, subject to objection, the court cannot inquire into the right of those who are absent. I think there is a great deal in the argument that it was never intended, by changing the form of proceeding, to take away a right which existed previously, namely, the right under quo warranto. We must look to the whole scope of the Act of Parliament, and the spirit in which it is framed, with a view and for the purpose of questioning elections. It is said that a municipal election may be questioned by election petition; but that clearly does not mean that you must of necessity object to everyone and to the whole election. A single individual may be the subject of an objection to a municipal election. Therefore, looking at the whole of the provisions, and to the most serious consequences which would follow if the contention of the applicant in the present case is correct, I think it is not by any means a case in which we cannot give relief. There is another point which has

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been adverted to, namely, the effect of that order by consent as to the special case. I think there is something in that. I cannot decide that this is by no means such a case as ought to induce the court to interfere and stay proceedings by taking the petition off the file.

FIELD, J.-I am of opinion that my brother Mathew's order was perfectly well founded and ought to be affirmed. I do not altogether share the regret which my brethren express that there should be a difference of opinion on the bench. I think it is a most valuable quality in our administration of justice, because it shows that each judge exercises his own individual independent view, and gives his judgment according to what he thinks to be right, and every view is thus considered and disposed of. Although, of course, the difference of opinion of my brother Lopes tends to make me doubt the correctness of my own opinion, it does not do so to the extent of making me think I ought not to give the judg ment I am about to give. I think my brother Mathew's order was right on the ground that Mr. Coward has no locus standi here by reason of his having consented that this should be turned into a special case. I think he has deprived himself by that consent of any other mode of questioning this election than such as he will be entitled to raise under the special case. If he is well warranted in his facts, and if he is well warranted in his law, he will raise all that by special case, and this court, when it hears that case, will decide every point which has been raised before us to-day. But we are asked to prevent that decision taking place and to take this petition off the file, and not to permit any argument before the court which shall be competent to decide it. I very much hesitate to do that in all cases. I require to be very well and clearly satisfied that a subject who comes to this court by way of petition can have no relief that he has prayed for, and, unless I am so satisfied, I, for one, will never take his petition off the file. Now, what are the material facts here? Municipal election, and objection taken to certain nomination papers on the ground that they have been subscribed by more than one person. Now by law the mayor is made the judge of all these objections. He must be treated as an official. It is not a question of other than a judicial decision which the Legislature vests in him for purposes very desirable, in order that there may be as little expense and trouble as possible. The Act of Parliament distinctly says that the mayor shall attend and shall decide the validity of every objection made in writing to a nomination paper. He is therefore a judge, and his decision is one which is to be taken to be sound. But there is a right of appeal given in a certain alternative, and that right of appeal is this he shall give his decision in writing, and, if he disallows an objection, it shall be final. But, if he allows the objection, then his decision shall be subject to reversal. When ? On petition. Questioning what? The election or return. It points, therefore, to two distinct and different things-the election or the return. In the present case the mayor did allow the objection. It is said by the petitioners that he was wrong in doing that. Whether right or wrong will be the question, of course, which will have to be decided upon the petition. But then it is said that upon this petition the petitioners are entitled to no re

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