The Elementary Education Acts, 1870-1891

appear before the court, or the court thinks it in the interests of justice expedient that he should be tried before some other court, the court, if of opinion that the evidence is sufficient to put the said person upon his trial for the offence, shall order such person to be prosecuted on indictment or before a court of summary jurisdiction, as the case may require, for the said offence ; and in either case may order him to be prosecuted before such court as may be named in the order; and for all purposes preliminary and of and incidental to such prosecution the offence shall be deemed to have been committed within the jurisdiction of the court so named.

A person who is charged with bribing during a municipal election inquiry, but has failed to attend after notice has been given to him to show cause why he should not be prosecuted, may be ordered to be prosecuted under sub-sec. 6 of this section, if the court is satisfied that the evidence in the election inquiry is sufficient to put him on his trial. R. v. Shellard, 60 L. T., N.S., 133; W. R., 706.

The evidence which is to satisfy the court before it makes an order under this sub-section means the evidence given during the trial of the petition, and that therefore a commissioner for the trial of municipal election petitions acted within his jurisdiction in ordering the prosecution of a person to whom he had refused a certificate of indemnity, and who did not appear, without rehearing the evidence affecting him, and also acted within his jurisdiction in issuing a summons under sec. 28 (6) (c) for his attendance before a Court of Summary Jurisdiction for the purpose of being formally committed for trial. R. v. Shellard, 23 L. R., Q. B. D., 273; 58 L. J. M., C., 142; 61 L. T., 120; 37 W. R., 706.

(6.) Upon such order being made,

(a.) If the accused person is present before the court, and
the offence is an indictable offence, the court shall com-
mit him to take his trial, or cause him to give bail to
appear and take his trial for the said offence; and
(b.) If the accused person is present before the court, and
the offence is not an indictable offence, the court shall
order him to be brought before the court of summary
jurisdiction before whom he is to be prosecuted, or cause
him to give bail to appear before that court; and
(c.) If the accused person is not present before the court, the
court shall as circumstances require issue a summons
for his attendance, or a warrant to apprehend him and
bring him before a court of summary jurisdiction, and
that court, if the offence is an indictable offence, shall,
on proof only of the summons or warrant and the identity
of the accused, commit him to take his trial, or cause
him to give bail to appear and take his trial for the said
offence, or if the offence is punishable on summary con-
viction, shall proceed to hear the case, or if such court
be not the court before whom he is directed to be

prosecuted shall order him to be brought before that

court.

See case of R. v. Shellard, referred to in note on sub-sec. 5.

(7.) Any order or act of an election court under this section shall not be subject to be discharged or varied under sub-sec. 6 of sec. 92 of the Municipal Corporations Act, 1882.

For provisions of sub-sec. 6 of sec. 92 of the Municipal Corporations Act, 1882, see p. 425.

(8.) The director of public prosecutions may nominate, with the approval of the Attorney-General, any barristers or solicitors of not less than ten years' standing, one of whom shall, when required, act as the representative for the purposes of this section of such director, and when so acting shall receive such remuneration as the Treasury may approve. There shall be allowed to the director and his assistant or representative, for the purposes of this section, such allowance for expenses as the Treasury may approve.

(9.) The costs incurred in defraying the expenses of the director of public prosecutions under this section (including the remuneration of his representatives) shall, in the first instance, be paid by the Treasury, and so far as they are not in the case of any prosecution paid by the defendant, shall be deemed to be expenses of the election court, and shall be paid as the expenses of that court are directed by sec. 101 of the Municipal Corporations Act, 1882, to be paid; but if for any reasonable cause it seems just to the court so to do, the court shall order all or part of the said costs to be repaid to the Treasury by the parties to the petition, or such of them as the court may direct.

As to costs, see sec. 29 and sec. 32, also sec. 101 of the Municipal Corpora tions Act, 1882, p. 431.

Power to Election Court to order Payment by Borough or
Individual of Costs of Election Petition.

29. (1.) Where upon the trial of a municipal election petition it appears to the election court that a corrupt practice has not been proved to have been committed in reference to the election by or with the knowledge and consent of the respondent to the petition, and that such respondent took all reasonable means to prevent corrupt practices being committed on his behalf, the court may make one or more orders with respect to the payment either

of the whole or such part of the costs of the petition as the court may think fit as follows:

(a.) If it appears to the court that corrupt practices extensively prevailed in reference to the said election, the court may order the whole or part of the costs to be paid by the borough; and

(b.) If it appears to the court that any person or persons is or are proved, whether by providing money or otherwise, to have been extensively engaged in corrupt practices, or to have encouraged or promoted extensive corrupt practices in reference to such election, the court may, after giving such person or persons an opportunity of being heard by counsel or solicitor and of examining and cross-examining witnesses to show cause why the order should not be made, order the whole or part of the costs to be paid by that person, or those persons or any of them, and may order that if the costs cannot be recovered from one or more of such persons they shall be paid by some other of such persons or by either of the parties to the petition.

(2.) Where any person appears to the court to have been guilty of the offence of a corrupt or illegal practice, the court may, after giving such person an opportunity of making a statement to show why the order should not be made, order the whole or any part of the costs of or incidental to any proceeding before the court in relation to the said offence or to the said person to be paid by the said person to such person or persons as the court may direct.

(3.) The rules and regulations of the Supreme Court of Judicature with respect to costs to be allowed in actions, causes, and matters in the High Court shall in principle and so far as practicable apply to the costs of petition and other proceedings under Part IV. of the Municipal Corporations Act, 1882, and this Act, and the taxing officer shall not allow any costs, charges, or expenses on a higher scale than would be allowed in any action, cause or matter in the High Court on the higher scale, as between solicitor and client.

As to costs of election petitions, see also sec. 28 and sec. 32 of this Act, and sec. 101 of the Municipal Corporations Act, 1882, p. 431.

As to the construction of the term "borough" in the case of elections of members of school boards, see sec. 36 (1) (a).

For Part IV. of the Municipal Corporations Act, 1882, see p. 419.

Miscellaneous.

General Provisions as to Prosecution of Offences under this Act.

30. Subject to the other provisions of this Act, the procedure for the prosecution of a corrupt or illegal practice, or any illegal payment, employment, or hiring committed in reference to a municipal election, and the removal of any incapacity incurred by reason of a conviction or report relating to any such offence, and the duties of the director of public prosecutions in relation to any such offence, and all other proceedings in relation thereto, (including the grant to a witness of a certificate of indemnity), shall be the same as if such offence had been committed in reference to a parliamentary election; and secs. 45 and 46 and secs. 50 to 57 (both inclusive), and secs. 59 and 60 of the Corrupt and Illegal Practices Prevention Act, 1883, shall apply accordingly as if they were re-enacted in this Act with the necessary modifications, and with the following additions ::

(a.) Where the director of public prosecutions considers that the circumstances of any case require him to institute a prosecution before any court other than an election court for any offence other than a corrupt practice committed in reference to a municipal election in any borough, he may, by himself or his assistant, institute such prosecution before any court of summary jurisdiction in the county in which the said borough is situate or to which it adjoins, and the offence shall be deemed for all purposes to have been committed within the jurisdiction of such court; and

See also secs. 23 and 28 as to the powers and duties of the director of public prosecutions in relation to election petitions.

(b.) General rules for the purposes of Part IV. of the Municipal Corporations Act, 1882, shall be made by the same authority as rules of court under the said sections; and

(c.) The giving or refusal to give a certificate of indemnity. to a witness by the election court shall be final and conclusive.

Person Incapacitated by Conviction or Report to vacate Seat

or Office.

31. If any person, in consequence of conviction or of the report of an election court under this Act, becomes not capable of being elected to or sitting in the House of Commons, or of being elected to or holding any public or judicial office, and such person, at the date of the said conviction or report, has been so

elected or holds any such office, then his seat or office, as the case may be, shall be vacated as from that date.

Payment and Recovery of Costs.

32. (1.) Where any costs of a petition are, under an order of a municipal election court, to be paid by a borough, such costs shall be paid out of the borough fund or borough rate.

(2.) Where any costs or other sums are, under the order of an election court or otherwise under this Act, to be paid by any person, those costs shall be a simple contract debt due from such person to the person or persons to whom they are to be paid, and if payable to the Treasury shall be a debt to Her Majesty, and in either case may be recovered accordingly.

Books

The Elementary Education Acts, 1870-1891: With Introduction and Notes