If the votes are equal, and the Returning Officer CHAP. IV. does not give a casting vote, a double return must, Double as we have seen,' be made. Both the members so return. returned may claim to be sworn, and to take their seats in the House; but neither can vote until his rival's claim is disposed of. Where an Election Petition complains of a double return, and the Respondent has given due notice that he does not intend to oppose the petition, and no party has been admitted to defend the return, and there is no petition complaining of the other member so returned, the Petitioner may withdraw his petition by a proper notice; and, upon receipt of the notice, the prescribed officer must report such withdrawal to the Speaker; whereupon the House will direct the double return to be amended by taking off the file the certificate by which the Respondent was returned.* Officer's The question has often been discussed as to Returning whether, in the event of the Returning Officer responsi erring inadvertently in any portion of his duties, bility for he is liable to actions brought by persons aggrieved by the error. His duties are still partly judicial 1 Ante, p. 104. 2 In Rogers on Elections, ed. 12, pp. 337-339, it is stated that a double return may also be made in case a disqualified candidate be elected. The Ballot Act, s. 2, enacts that the returning officer "shall declare to be elected the candidates to whom the majority of votes have been given, and return their names to the Clerk of the Crown," without any allusion to their qualification. Since the passing of the Ballot Act the question of disqualification has arisen in two cases, i.e. Tipperary, 3 0. & H. 19, and Galway, 20. & H. 46, and in each case the returning officer has returned the candidate alleged to be disqualified without making a double return. 3 Report, Oaths of Members, 1848, Q. 23-25; Knares borough, Com. J. 852; May's Parl. Pr. ed. 7, p. 644. 4 Parl. El. Act, 1868 (31 & 32 Vict. c. 125), s. 40. There has been only one return dealt with under this section, namely, for Horsham, in November, 1868. See certificates and reports received from the judges, and ordered by the House of Commons to be printed, May 3, 1869. 5 As to which of his duties may now be considered judicial error. CHAP. IV. and partly ministerial. As to his judicial duties, it seems clear that he is only liable to an action for wilful misconduct.' But for a mistake made by him in the exercise of any of his ministerial duties he has been held to be liable, although he has acted without malice.2 No fees allowed for making return. Claims on candidates when to be sent in. The Returning Officer is not entitled to any fees for making out the return," nor is the Clerk of the Crown for receiving it, the Act of 10 & 11 Will. III., c. 7, s. 1, having been repealed by the Ballot Act. 4 6 Election Expenses.] We have already seen that on or before the nomination day candidates must declare in writing to the Returning Officer the name and address of some person or persons to act as agent for election expenses, and that it is a misdemeanour to make any payment in respect to an election otherwise than through such agent.7 All persons, other than the Returning Officer, who have any bills, claims, or charges against any candidate in respect of the election must send them to such agent within one month from the day of the declaration of the election, otherwise such persons will be barred of their right to recover such claims. If a creditor dies within the month, his legal representative must send in the bill, claim, or charge, within a month of obtaining probate, or letters of administration, or and which ministerial, see Rogers on Elections, ed. 12, p. 319, note (w). 1 See Cullen v. Morris, C. & D. 163, and Harman v. Tappenden, 1 East, 562; both commenting on Ashby v. White, 2 Ld. Raym. 938; 1 Bro. Parl. Cas. 47; 8 State Tr. 89; Burnet's Hist. vol. iv. p. 31. 2 Pickering v. James, L. R. 8 C. P. 489. 4 Ante, p. 73. 5 As to the meaning of the expression "candidates at an election," see below, p. 142. 6 As to what items should be included in the return of election expenses, see dicta of Willes, J., in Penryn case, 1 0. & H. 131. See also Grant v. Guinness, 25 L. J. C. P. 70. 7 26 Vict. c. 29, s. 2, App. lxv. 8 Ib. s. 3, App. lxvi. confirmation, as executor. It is also provided that CHAP. IV. if, and so long as, during the month, there shall be, owing to death or legal incapacity, no authorised agent, the bills, claims, or charges, are to be sent in to the candidate himself.1 and inspec tion ex penses. Within two months after the election (or where Publication by reason of the creditor's death, no bill has been tion of statesent in within the two months, then within one ment of elecmonth after it has been sent in) a detailed statement of all election expenses incurred by, or on behalf of the candidate, including payments for his personal expenses in relation to the election,3 must be made out and signed by the agent, or agents, who has, or have, paid the same, or by the candidate in respect of any payments made by himself; and must be delivered, with the bills and vouchers relative thereto, to the Returning Officer. And within fourteen days afterwards the Returning Officer is, at the candidate's expense, to insert, or cause to be inserted, an abstract of such statement, with the signature of the agent thereto, in some newspaper published or circulating in the county or place where the election was held. Any agent or candidate making default in delivering such statement to the Returning Officer, will incur a penalty not exceeding five pounds for every day during which he so makes default. Any agent or candidate wilfully furnishing to the Returning Officer an untrue statement is guilty of a misde. meanour, or, in Scotland, of an offence punishable with fine and imprisonment. The Returning Officer 126 Vict. c. 29, s. 3, App. lxvi. 2 As to disputed claims, see Richardson v. Chasen, 10 Q. B. 756. In the Penryn case, 1 O. & H. 131, it was held that expenses connected with registration are not election expenses within the meaning of the Corrupt Practices Act, 1854. 3 As to the meaning of "personal expenses," see 17 & 18 Vict. c. 102, s. 38, App. lvii. and Grant v. Guinness, 17 C. B. 190. 4 The expense of this publication of accounts is expressly excepted from the operation of the 38 & 39 Vict. c. 84. See s. 4 of that Act, App. post, and notice of election, ante, p. 21. CHAP. IV. is to preserve all such bills and vouchers, and during six months after their delivery to him, to permit any voter to inspect them on payment of a fee of one shilling. He is not, however, bound to permit copies to be taken of such bills or vouchers, but if he is requested to do so, it is advisable that he grant leave.2 Claims of Returning Officer against candidates With regard to the expenses incurred by the Returning Officer in conducting the election, it is enacted as to England and Ireland that the Rein England turning Officer must within twenty-one days after and Ireland. the making of the return transmit to each candidate or his agent for election expenses, a detailed account showing the amounts of all the charges claimed by the Returning Officer in respect of the election, and the share of such charge which the candidate is liable to pay, and to this account he must annex a notice of the place where the vouchers relating to the account may be The Returning Officer will not be entitled to recover any charges which are omitted from this account. If a candidate objects to any part of this claim, he may, within fourteen days after receiving the account, apply to the County Court which has jurisdiction at the place of nomination for a taxation of the account, and then after taxation the amount of the claim which is found by the Court to be due may be recovered from the candidate in the same way in which a judgment is usually recovered, with or without costs, as the Court shall think fit. seen. 126 Vict. c. 29, s. 4, App. lxvi. It may be observed that it was held, in several of the petitions tried by the judges, that non-compliance with the provisions of this enactment is prima facie evidence of corrupt practices on the part of the candidate and his agents. See per Blackburn, J., in Bewdley case, 1 0. & H. 20, and per Martin, B., in Bradford case, 1 O. & H. 33. Also, if an unsuccessful candidate does not send in a detailed account of his expenses pursuant to this above enactment, it may be considered as a ground for saddling him with his own costs, though he succeeds in unseating his opponent on petition; per O'Brien, J., in Youghal case, 1 O. & H. 299. 2 Per Bramwell, B., Durham, 2 O. & H. 135. Claims Returning in 14 days election. Until recently there was no statutory enactment CHAP. IV. with regard to claims against Returning Officers for work done for election purposes, but it is now pro- against vided, with regard to England and Ireland,' that Officers to be every person having any claim against a Returning sent in withOfficer for work, labour, materials, services, or ex- after the penses in respect of any contract made with him by or on behalf of the Returning Officer for the purposes of an election, except for publication of accounts of election expenses, shall, within fourteen days after the return has been made, transmit to the Returning Officer the detailed particulars of such claim in writing, and that the Returning Officer shall not be liable in respect of anything which is not duly stated in such particulars. If any such claim is afterwards disputed by the candidates, who are the persons ultimately liable, they may be adjudicated upon by the County Court to which the Returning Officer's claim may be referred by the candidate for the purposes of taxation, and the decision of such Court with regard to such claim will be final for all purposes and as against all persons. |