whether wife or husband owned the land, but was whether the timber was taken from their land or from land not the property of either of them. Precisely the same course of the action would have taken place if the husband or husband and wife had originally been plaintiff or plaintiffs. The amendments should, in my opinion, be made now.

I would allow the appeal, and restore the judgment directed to be entered at the trial, on the amendments being made, for it is not unimportant that the husband as well as the wife should be bound by these proceedings.

Moss, C.J.O., GARROW and MACLAREN, JJ.A., concurred in the result.

C. A.

1907 FAULKNER

υ.

GREER.

Meredith, J.A.

A. H. F. L.

C. A. 1907

April 25,
July 2.

1908

Jan. 22.

[IN THE COURT OF APPEAL.]

IN RE DUNCAN AND THE TOWN OF MIDLAND.

Intoxicating Liquors Local Option By-law-Municipal Corporations—Requi-
site Three-fifths Majority Obtained-Two Weeks Allowed for Scrutiny-
Final Passing by Council Before Expiry Thereof-Refusal to Quash-
Irregularities in Voting-Voters Depositing Ballots in Box-Publication
of Notice-Computation of Time_for-Council, whether Lawfully Con-
stituted-Right to Inquire into-Knowledge of Council as to Required
Majority-Necessity for-Ballot Boxes-Use of, for Voting for Other
Objects-Voters' Lists, Preparation of—Containing More than Requisite
Number of Voters Appointment of Deputy Returning Officers and Poll
Clerks Illiterate Voters-Marking of Ballots Irregularity Result of
Vote Not Affected Oath, Useless Form of-Effect of Public Harbour,
Application of By-law to-By-law, Publication of Whether True Copy
Words, Meaning of.

By sub-sec. (1) of sec. 141 of the Liquor License Act, R.S.O. 1897, ch. 245,
the Municipal Council may pass a local option by-law, provided that before
the final passing thereof it has been approved by the electors "in the
manner provided by the sections in that behalf of the Municipal Act";
but by sec. 24 of 6 Edw. VII. ch. 47 (O.), if three-fifths of the electors voting
on the by-law approve of it, the council shall within six weeks thereafter
finally pass it, and that the duty so imposed may be enforced by mandamus
or otherwise.

A local option by-law was submitted to the electors of the town of Midland,
and, on the day following the voting, the clerk of the council declared
the result of the voting, which was in its favour by the requisite majority.
A week after, the council purported to finally pass the by-law.
Per OSLER and GARROW, JJ.A., in the Court of Appeal:-The pro-
visions of the Municipal Act, as contained in secs. 369-374 as to
the ascertainment by the clerk of the result of the voting and
as to the right to a scrutiny apply to a by-law of this kind;
and, therefore, the by-law should not be finally passed by the
council until the expiration of the two weeks next after the clerk
has declared the result of the voting, but there being here the requisite
two-thirds majority, and no attempt made to obtain a scrutiny, the only
objection made being as to the faulty third reading, the passing of the
by-law being a purely formal and ministerial act only, which the council
could be compelled to do, nothing would be gained by quashing it.
Per MACLAREN and MEREDITH, JJ.A. The by-law could properly be passed
by the council at any time within the six weeks, notwithstanding the non-
expiry of the two weeks allowed for the scrutiny, so long as there was
the three-fifths majority, there being nothing to prevent a scrutiny being
had afterwards.

Moss, C.J.O., agreed in the result.

Judgment of the Divisional Court affirmed, and that of MULOCK, C.J., re-
versed.

Held by the Divisional Court, BRITTON, J., concurring in the result:-
(1) No proceedings after the polling, such as summing up the votes, or a
declaration by the clerk of the result of the voting are necessary.

(2) Where a voter, instead of handing the ballot paper to the deputy return-
ing officer, puts it into the box himself, but with the officer's approval,
the vote is not invalidated.

(3) In computing the three weeks required for the publication of the bylaw, the word "week" is used in its ordinary signification, and includes Sundays and holidays.

Re Armour and Township of Onondaga (1907), 14 O.L.R. 606, approved of.

(4) The question whether the council, when it passed the by-law, was properly
constituted or not, will not be considered on a motion to quash.
Re Vandyke and Village of Grimsby (1906), 12 O.L.R. 211, followed.
(5) Knowledge by the council, when finally passing the by-law, that the
three-fifths majority has been obtained, is not essential.

(6) The ballot-boxes used for voting on the by-law can properly be used
for concurrent voting for other objects, the Act in no way restricting their
use to voting on the by-law only.

(7) Objections, that the voters' lists were not properly prepared; that the list for one of the polling divisions contained more than the requisite number of voters; and that certain deputy returning officers and poll clerks were not properly appointed, were overruled.

(8) The declaration of inability to read or physical incapacity to mark the
ballot is a pre-requisite to open voting, and its absence invalidates the
vote, even though it is done with the consent of the scrutineers for and
against the by-law; but the defect was immaterial, for, even if struck
off, the result here would not have been affected.

(9) Á voter is not to be deprived of his vote by reason of the submission
to him by the deputy returning officer of a useless form of oath.
(10) The fact that a public harbour, which is subject to the legislative autho-
rity of the Dominion, was within the territorial limits of the township
does not necessarily raise the presumption that the council intended the
by-law to apply thereto, even assuming that the council had not power
to do so.

(11) The copy of the by-law as advertized was: "In every tavern, inn or other house of public entertainment," omitting the words "or place" between the words "other house" and "public entertainment," which were contained in the original by-law:

Held, that the phrases "tavern, inn or house or place of public entertainment" and "houses of entertainment" were equivalent terms, and an objection that the copy published was not a true copy was overruled.

THIS was an appeal from the judgment of the Divisional Court reversing the judgment of MULOCK, C.J., Ex. D., in the Weekly Court on a motion to quash a local option by-law of the municipal corporation of the town of Midland. The voting took place on the 7th of January, 1907. Upon the 8th of January the clerk of the council declared the result of the voting, and upon the 14th of January the council purported to pass the by-law. The clerk's certificate shewed that 477 votes were cast in favour of and 234 against the proposed by-law, the vote in its favour thus exceeding the required three-fifths majority.

The prohibitive part of the by-law was: "That the sale by retail of spirituous, fermented or other manufactured liquors is and shall be prohibited in every tavern, inn or other house or place of public entertainment in the said municipality, and the sale thereof, except by wholesale, is and shall be prohibited in every shop or place other than a house of public entertainment in the said municipality."

The motion in the Weekly Court was heard on March 6, 1907.

C. A. 1907

IN RE
DUNCAN
AND

THE TOWN
OF

MIDLAND.

IN RE DUNCAN AND

THE TOWN

OF

MIDLAND.

Mulock, C.J.

F. E. Hodgins, K.C., for the Town of Midland.

April 25. MULOCK, C.J.:-Objection is taken that the council had no power to pass the by-law until the expiry of two weeks after the declaration by the clerk. The question thus raised. involves the consideration of the following statutory enactments authorizing the passing of local option by-laws, and regulating the procedure in connection therewith.

Sub-section 1 of sec. 141 of the Liquor License Act, R.S.O. 1897, ch, 245, declares that every council may pass such a by-law, "provided that the by-law, before the final passing thereof, has been duly approved by the electors of the municipality in the manner provided by the sections in that behalf of the Municipal Act."

Sub-section 4 of sec. 24 of the Act to Amend the Liquor License Laws, being ch. 47 of 6 Edw. VII., which repeals sub-sec. 2 of sec. 141 of the Liquor License Act, declares that "in case three-fifths of the electors voting upon such by-law approve of the same the council shall within six weeks thereafter finally pass such by-law, and this sub-section shall be construed as compulsory and the duty so imposed upon the council may be enforced at the instance of any municipal elector by mandamus or otherwise."

Sub-section 1 of sec. 141 of the Liquor License Act being still in force, reference must be had to the Consolidated Municipal Act, 1903, for the purpose of ascertaining the manner necessary in order to such approval.

The sections of the last mentioned statute bearing upon the subject are as follows:

Section 338: "In case a by-law requires the assent of the electors of a municipality before the final passing thereof, the following proceedings shall, except in cases otherwise provided for be taken for ascertaining such assent."

Section 369: "If within two weeks after the clerk of the council which proposed the by-law has declared the result of the voting, any elector who was entitled to vote upon the by-law applies upon petition to the county Judge after giving such notice of the application, and to such persons as the Judge directs, and shews by affidavit to the Judge reasonable grounds for entering into a scrutiny of the

ballot papers
the Judge may appoint a day and place
within the municipality for entering into the scrutiny."

Section 370: "At least one week's notice of the day appointed for the scrutiny, shall be given by the petitioner to such persons as the Judge directs, and to the clerk of the municipality."

Section 371: "On the day and at the hour appointed, the clerk shall attend before the Judge with the ballot papers in his custody and the Judge upon inspecting the ballot papers, and hearing such evidence as he may deem necessary, and on hearing the parties, or such of them as may attend, or their counsel, shall in summary manner determine whether the majority of the votes given is for or against the by-law, and shall forthwith certify the result to the council."

Section 374: "In case of a petition for a scrutiny being presented, the by-law shall not be passed by the council until after the petition has been disposed of; and the time which intervenes between the presenting of the petition and the final disposal thereof shall not be reckoned as part of the six weeks within which the by-law is to be passed."

The effect of the amending sub-sec. 4 of sec. 141 of the Liquor License Act, above quoted, is to require approval of the by-law by three-fifths, instead of, as formerly, by a bare majority of the electors voting upon it, and to declare that the council may be compelled by mandamus or otherwise to pass the by-law so-approved within six weeks after it shall have received such approval, but the amendment does not repeal the proviso to sub-sec. 1 of sec. 141, which declares that before the by-law is finally passed it shall have received the approval of the electors in manner required by the sections in that behalf of the Municipal Act.

Thus in the case of a local option by-law, the amending sub-sec. 4 of sec. 141 of the Liquor License Act is substituted for sec. 373 of the Municipal Act. The other sections referred to, namely, secs. 369, 370, 371 and 374, are left in full force, and the question is whether, having regard to these sections and the amending subsec. 4 of sec. 141 of the Liquor License Act, the council had power to pass the by-law at the time when they purported to do so, namely, within seven days after the clerk had declared to them the result of the voting.

The intention of the Legislature was, I think, that before the

C. A.

1907

IN RE DUNCAN

AND

THE TOWN
OF

MIDLAND.

Mulock, C.J.