(1885), 9 O.R. 154. Another is that it was not intended to give Here one is met by the decisions of the Supreme Court and the Court of Appeal upon the analogous provision in the Canada Temperance Act, 1878, 41 Vict. ch. 16, sec. 61 (D.). In Re Canada Temperance Act and St. Thomas (1886), 12 A.R. 677, the Court of Appeal followed, without comment, the decision of the Supreme Court in Chapman v. Rand, 11 S.C.R. 312. In the latter case the majority of the Court expressed concurrence with the conclusion arrived at by Mr. Justice Rose in In re Canada Temperance Act and City of St. Thomas, 9 O.R. 154. The Canada Temperance Act had followed, in secs. 61 and 62, the words of secs. 21, 22 and 23 of 39 Vict. ch. 35 (O.), but omitted sec. 25, which refers to powers as on a trial and an application to quash. It had also omitted any provision for a mere recount, and by sec. 48 declared the decision of the deputy returning officer upon a ballot. paper final, subject only to reversal upon the scrutiny, thereinafter mentioned. In sec. 70 that Act copied sec. 38 of 38 Vict. ch. 28 (O.). There was no additional or analogous legislation of the Dominion Parliament referred to, and in the Supreme Court the Act was treated as being sui juris, and even the "tribunal" referred to in sec. 20 was difficult to find. Now, Mr. Justice Rose had pointed out (at p. 161) the omission of the provision in sec. 25 D. C. 1908 IN RE LOCAL OPTION BY LAW OF SALTFLEET. Magee, J. D. C. 1908 IN RE LOCAL OPTION BY LAW OF SALTFLEET. Magee, J. of 39 Vict. ch. 35 (O.) (then sec. 316 of the Municipal Act, R.S.O. 1877), and considered that omission and the non-introduction of any provision similar to those for such a trial to be "a most formidable objection." I take it that he at least would have been prepared to consider the Ontario legislation from a different standpoint. If, in addition, the Canada Temperance Act had contained a provision for a recount exactly similar to what was provided for cognate elections, and omitted sec. 48, the same conclusion might not have been arrived at either by him or the Supreme Court, especially if there was a body of other legislation to compare it with, and the majority of the latter court might not have felt compelled to say that the Legislature had failed to make a broader "intention apparent by any reasonable inference." The important point at present is that the Dominion Act stood by itself for construction, and a decision upon it, though of the greatest weight, is not conclusive as regards legislation having other provisions. Here I may say that, while the reference in sec. 25 to the powers on a trial are entitled to consideration as indicating what was in the intention of the Legislature, they do not seem to me to add really the powers as on a trial, for they are limited, after all, by the words "as to all matters arising upon the scrutiny," and, therefore, are restricted to what the scrutiny may authorize and the discretion over costs, as on an application to quash, is necessarily likewise confined. Assuming, then, that the Judge is not limited upon the scrutiny to a mere recount or otherwise within the bounds sought to be fixed by the respondents, what are his powers upon this scrutiny? To ascertain that we have to leave the consideration of the statutes as they stood in 1876, and come to the present date, although the extent of possible authority then might aid materially in establishing whether or not it was given to him; but, unless incidentally, I will not stop to deal with its original extent. Some other matters have first to be looked at. By 38 Vict. ch. 28 (O.), as now by the Municipal Act, not only was secrecy of voting provided for in various ways, but by sec. 34 (now sec. 200 of the latter Act) no person could, in any legal proceeding to question the election or return, be required to state for whom he had voted. In the Haldimand (Dom.) Election case (1888), 1 Elec. Cas. 529, Strong, J., held that the secrecy could not be waived under the Dominion statute, which, however, he considered to be different from the Ontario statute, therein, doubtless, referring to the mode of tracing a vote under the latter. That distinction does not exist as to municipal ballots. There was not in 1876, as there is not now, any way of tracing the ballot of any particular voter at a municipal election, upon a scrutiny, by reference to any counterfoil number or otherwise, as there was in case of an illegal vote at a provincial election. Although in the preparation of the voters' lists the decision of the county Judge, upon the revision of the list, was final as to whatever names came before him (37 Vict. ch. 4, sec. 5 (0.), it was not until 1878 that the whole list, as revised, was made, as it now is, final and conclusive (except as to certain matters), upon a scrutiny, on a provincial election-41 Vict. ch. 21, secs. 23 (0)— and not until 1907—7 Edw. VII. ch. 4, sec. 24 (O.)—in a municipal election. Whether that includes voting on this by-law is, perhaps, a question, as it is voted on by all municipal electors, but some bylaws are not. By 36 Vict. ch. 48, sec. 77 (O.), the rating on the assessment roll was final, and not to be questioned by any returning officer or on any application to set aside an election; and by 40 Vict. ch. 12, sec. 20 (O.), no question of qualification was to be raised at any municipal "election," excepting the question of identity. The voter could, however (and can), be sworn on various points, including the subject of his being bribed, but if he took the oath, he must then, as now, be admitted to vote, unless in default for taxes in certain cases. The word "election" is not defined by the Municipal Act, 1903, but "electors," by sec. 2, includes voters on a by-law or an election, and by the interpretation Act, R.S.O. 1897, ch. 1, sec. 10, that definition extends to all enactments relating to municipalities, and would include those parts of the Voters' List Act which so relate. The finality was dealt with in the South Wentworth (Ont.) case (1879), H.E.C. 531, and see Reg. ex rel. Mackenzie v. Martin (1897), 28 O.R. 523. Whether in this case the list would be final, it is certain that for most by-laws it would not be, as the franchise is more limited. Even for this by-law it would not be final in cases of persons subsequently disentitled by corrupt practices or by non-residence -7 Edw. VII. ch. 4, sec. 24 (O.)-nor would it be as to persons disqualified by acting as deputy returning officers, poll clerks, or D. C. 1908 IN RE LOCAL OPTION BYLAW OF SALTFLEET. Magee, J. D. C. 1908 IN RE LOCAL OPTION BY LAW OF SALTFLEET. Magee, J. constables, if that were a disqualification; nor as to those certified in default for payment of taxes, nor persons forfeiting their vote under sec. 170 of the Municipal Act, or if, after the revision of the voters' list, found guilty under secs. 250, 251, and other sections. Manifestly, then, on every by-law it might possibly be that persons voted who could not legally do so. Now, I take it that a scrutiny involves not such matters as affect the validity of a whole election-e.g., void proceedings, corrupt practices, etc.-but the inquiry into the right of the particular voter to vote, and whether and how he has voted, in so far as either inquiry is permitted by law, and the application of the result of such inquiry to the particular question being dealt with. If, by reason of bribery or other corrupt practice, the particular voter lost his vote, that would be a proper subject of inquiry on the scrutiny, not as affecting the election or by-law generally, but as affecting his vote thereon; and here I may note that in quo warranto cases the county Judge can inquire into bribery, etc., under sec. 248. In Ex parte Rand (1885), 24 N.B. 374, Palmer, J., seems to go so far as to say that if the election were Aot properly held, and were consequently invalid, the votes would be invalid, and might as such be, under the Canada Temperance nct, individually struck off; but that is, I think, far outside the powers under this scrutiny. As put by King, J., in that case, it contemplates ascertaining the adoption or rejection of the bylaw, but not a determination that there was no valid election. I agree with him that it would include an inquiry into the result of the voting in case of loss of ballots, and that secondary evidence as to the ballots might be taken, as was held in Ex parte Le Blanc (1896), 34 N.B. 88. Then, having found that persons not entitled to vote voted, that would reduce the total number of votes out of which the majority is to be ascertained. In the present case the learned county Judge has found that four ballots were polled by deputy returning officers and five by poll clerks, and these he would strike off, following the judgment in Re Armour and Township of Onondaga, 9 O.W.R. 833. I am unable to agree with that decision, because it depends upon the assumption that these officers would lose their votes but for sec. 179. Section 86 of the Municipal Act declares the qualifica tion, and I do not find anything to take it away, if they went to the polling place of the sub-division where their names appear on the voters' list. To prevent them having to leave their own polling booths, sec. 347 was passed. It certainly recognizes the propriety of their voting at elections. The exception of the whole of sec. 179 in sec. 351 has, I think, been inadvertent, but I do not see that it has the effect suggested. Those nine votes should not be disallowed, nor should those of the five constables engaged at the polling places, whom the county Judge also states to have voted. Then there is one vote of a farmer's son, whose father had only two acres. As to that the voters' list seems to be final; so, also, with regard to two aliens. With regard to the person on the voters' list whose qualification has been lost by non-residence, that is one of the exceptions to the finality of the list mentioned in 7 Edw. VII. ch. 4, sec. 24 (O.), and should be struck off. As to two married women who voted, it does not appear whether they are alleged to have been married only since the revision of the voters' list or before. If before, the list is final; if since, I would have been inclined to think the votes should be disallowed, but I am not prepared to dissent from the views of the other members of the Court thereon. I agree with the judgment appealed from as to the status of the applicant for the prohibition, and as to the propriety of its issue at that stage, but I think it should not have prevented the county Judge from the inquiry into the validity of votes when deciding upon the proper counting of the ballot papers, but that it should be limited to disallowing votes upon the grounds referred to. It is said there were blank ballot papers found in the ballot boxes. It would be within the Judge's province to decide whether these were ballots issued to and deposited by voters or whether improperly or accidentally placed among the others, and whether to disregard them or not. D. C. 1908 IN RE LOCAL OPTION BYLAW OF SALTFLEET. Magee, J. 21-VOL. XVI. O.L.R. A. H. F. L. |