If a Poll is

107.-If more candidates than one are proposed, and if a the election poll be demanded, (h) the Clerk or Chairman shall on the fol

demanded,

to be by Wards.

Duration of

poll.

Poll-books to be kept,

lowing day post up in the Office of the Clerk the names of the persons proposed, and give notice thereof to the Returning Officer for every Ward.

108.-In case of a contest in an election for the office of mayor, the Returning Officer for every ward shall keep the poll open for the full time required by law for taking the votes, though there may be no contest for the other offices for which he holds the election. (i)

109.-Every Returning Officer shall enter in his poll-book, in separate columns, the names of the candidates for the office to the Clerk. of mayor, as well as the names of the candidates for the offices

And return'd

(h) A popular impression exists that the Returning Officer, &c., at an election, ought, when there are more candidates than are required to supply the vacancies, to take the show of hands, and that the omission to do so is an irregularity. (Clerk on Elections, 360.) The modern practice is, no doubt, in the first place to take the show of hands; but formerly there were several rude modes of expressing the opinion of the electors, which constituted an election by view,—either holding up of hands, calling out the names of candidates, or by dividing into separate bodies. (1 Whill. 393.) A show of hands is the mode of expression authorized by statute, in the case of the election of members of Parliament. (12 Vic. cap. 27, sec. 12.) It is usual for the candidate in the minority upon the show of hands to demand a poll. It is, however, apprehended that any elector may demand a poll. When a poll is demanded, it is, by the section under consideration, made the duty of the Clerk or Chairman, on the following day, to post up in the office of the Clerk the names of the persons proposed, and to give notice thereof to the Returning Officer for every ward. It is not clear whether the notice to the Returning Officer for each ward must be done on the day following the demand of a poll. That the notice must be posted up on that day, is clear beyond question, and the notice should of course be given without any unnecessary delay.

(i) The votes, where there is a contest, as well for the office of mayor as of the other offices for which the election is held, should be taken concurrently. It may, however, happen, either that there is no contest for "the other offices," (aldermen, councilmen or councillors,) or that the election to those offices has taken place before the election of mayor is closed. In either event, or on any such event, the poll must be kept open to receive the votes for mayor "for the full time required by law," viz., twelve hours. (See sec. 97, sub-sec. 7; secs. 99, 100, and notes thereto.) The object of this section is to provide against any misapprehension on the subject. If the Returning Officer see that all the electors intending to vote for mayor have had a fair opportunity of being polled, and if one full hour has elapsed at any one time without any qualified elector during that time giving or tendering his vote, &c., the Returning Officer may, it is app. ehended, close the poll. (See note g to sec. 97.)

of aldermen and councilmen in cities, or of councillors in towns, and shall, in the column in which is entered the name of a candidate for mayor voted for by any voter, set the number 1 opposite the voter's name. (i)

ed to Clerk.

110.- Every Returning Officer shall, on the day after And returnthe close of the poll (), return the poll-book to the City or Town Clerk, verified as to the election of mayor, as well as in the other particulars required by this Act.

Officer to add

declare the

result.

111.-The City or Town Clerk shall add up the number Returning of votes set down for each candidate for mayor in the respec- up Poll and tive poll-books so returned, and ascertain the aggregate number of such votes; and in case a poll has been taken, and the poll-books have been returned for every ward, the Clerk shall, at the City or Town Hall, at noon of the day following the return of the poll-books, declare elected the candidate having the largest number of votes polled. (k)

ty for any

112.-In case there is no majority for any one candidate, If no majorithe Clerk shall declare that two or more candidates (naming candidate. them) have an equal number of votes (7); or in case no return has been made for one or more wards, in consequence of no election having been held therein, or of the election having been interrupted through riot or other cause, he shall declare the want of returns for such ward or wards, and the cause thereof. (m)

(i) Only one poll-book is required, and that is to contain in separate columns the names of the candidates for the office of mayor, as well as the names of the candidates for the offices of aldermen and councilmen in cities, or of councillors in towns, &c.

(1) There is to be only one poll-book, as explained in the last note. That poll-book is, under sec. 98, to be returned to the Clerk "within three days after the close of the election," or, under the section here annotated, "on the day after the close of the poll." Here, as regards cities and towns, there is an inconsistency. To be on the safe side, the Returning Officer of a city or town had better, when possible, in every case return his poll-book "on the day after the close of the poll."

(k) It does not appear to be necessary that a candidate to be successful, should have a majority of the whole number of votes polled, but to have the largest number of votes polled that is polled for any one candidate. In the event of there being an equality of votes for two or more candidates, the election is to be decided under sec. 115 of this Act.

(1) The power of the Clerk, under this section, to declare that two or more candidates (naming them) have an equal number of votes, is to exist only "in case there is no majority for any one candidate." (m) The want of the returns is to be declared with a view to future action.

E

Mayor to

take oath of

day of

113.-The mayor elect shall make and subscribe the necesoffice on first sary declarations of office and qualification on the day appointed for the first meeting of the Council (n), and shall afterwards administer the necessary declarations to the other members of the Council. (0)

meeting.

All the Members to be sworn, &c.

If votes for
Mayor equal.

114. No other business shall be proceeded with at the said meeting until the said declarations have been administered to all the members who present themselves to take the same. (p)

115.-In case two or more candidates for Mayor have an equal number of votes (q), the members of the Council shall take the necessary declarations before the Clerk (r), and shall after doing so organize themselves as a Council by electing as Mayor one of such candidates (s); the Clerk presiding at the Election.

(n) For the terms of the declaration, and before whom to be made, see secs. 175, 177, 179.

(0) It is enacted by sec. 179 that "the head and other members of the Council, &c., shall make the declaration of office and qualification before some court judge, recorder, police magistrate or other justice of the peace having jurisdiction in the municipality," &c. In the section under consideration it is directed that "the mayor shall administer the necessary declarations to the other members of the Council." Between the two there is an apparent inconsistency, unless this is to be taken as a special provision regarding mayors, and sec. 179 as a general provision for all other cases in which there can be no head till the members are sworn in and a head elected. If this is not the correct view, the two sections may be reconciled in this manner: The mayor is an officer or justice of the peace (sec. 340), and administer. ing the declarations he may be taken to do so as mayor under sec. 113, or as a justice of the peace under sec. 179. It would have been better had the word " mayor" been mentioned after "recorder," in sec. 179; but there appears to be no good reason, taking sec. 113 and sec. 179 together, to doubt the power of the mayor in this respect.

(p) It is apprehended that before electing a Mayor when that election, under sec. 115, devolves upon the Council, the members ought to take the necessary declarations. Such an election would, it is believed, be deemed "business" within the meaning of this section. Indeed, were there any doubt in the reading of the section alone, the reading of it in common with the following section (s. 115) would remove the doubt.

(2) Or be, it is presumed, returned as having such, under sec. 112. (r) The Clerk is not only authorized under this section, but under sec. 179, to administer the necessary declarations. So that there is no doubt as to his right to administer the declarations under all circumstances.

(3) The inference is that the members elect are not organized as a Council until the head is elected. They are to "organize themselves

116.-In case no return is made for one or more Wards in consequence of non-election, owing to interruption by riot or other cause (t), the members of Council elect being at least a majority of the whole members of the Council when full (u), shall elect one of the Aldermen elect in Cities, or one of the Councillors elect in towns, to be the Presiding Officer, at which election the Clerk shall preside (v), and such Officer shall take the necessary declarations (w), and possess all the powers of Mayor, until a poll for such Ward or Wards has been held under a warrant in the manner provided for in the one hundred and twenty-second section of this Act. (x)

completed,

declare re

117. When a Poll has been duly held in each of such when Poll Wards, and the poll-books returned to the Clerk, the Clerk Clerk to add shall add up the number of votes for Mayor therein set down up votes and for the respective candidates, and ascertain the aggregate num- sult; when ber of votes for Mayor contained in such last mentioned poll- and where. books, together with the votes contained in the poll-books previously returned for the other Wards, and shall, at noon on the next day, at the City or Town-Hall, declare elected Mayor, the candidate having the greatest number of votes polled (y), or declare that there is an equality of votes for two or more candidates, (as the case may be.)

as a Council by electing as Mayor one of such candidates." It requires
"a majority of the whole number of members required by law to con-
stitute the Council and form a quorum," (sec. 140) and it is submit-
ted that without such a quorum the Council cannot proceed under
this section. This construction is borne out by the section following,
(sec. 116) where it reads "the members of the Council, being at least
a majority of the whole members of the Council when full."
(1) See sec. 112.

(u) See note s to preceding section.

(v) Shall elect one, &c., of course having previously taken the necessary declarations of qualification and of office (see note p to sec. 114).

(w) The declarations to be taken before one of the public officers mentioned in sec. 179.

(z) The election being of course only a temporary one, and the necessity for it being an essential to the organization of the Council (see notes to section 115). This section is designed to ensure a return from every ward, before the right to the office of Mayor is finally determined.

(y) It is the duty of the Clerk, at the time and place named to declare elected Mayor the candidate "having the greatest number of votes polled," as to which, see note k to sec. 111.

In case of

equality the

118.-In case of an equality of votes, the Couucil shall

Council to appoint as Mayor one of the candidates between whom the

decide.

Declaration

equality exists. (z)

119. The person so elected or appointed shall forthwith and assump make the declaration in manner provided for Mayors (a), and assume the office of Mayor accordingly.

tion of office.

Mayor to be

the Head of the Council;

bis duties.

Seats vacat

ed by insolvency,

120.-The Mayor shall be deemed the Head of the Council, and the head and chief executive officer of the Corporation; and it shall be his duty to be vigilant and active at all times in causing the Law for the government of the City to be duly executed and put in force; to inspect the conduct of all subordinate officers in the government thereof, and as far as may be in his power, to cause all negligence, carelessness and positive violation of duty to be duly prosecuted and punished, and to communicate from time to time to the Council, all such information, and recommend all such measures as may tend to the improvement of the finances, the police, health, security, cleanliness, comfort, and ornament of the City. (b)

ELECTION WHEN SEATS VACATED, &c.

121.-In case a member of the Council (c) is convicted of felony or infamous crime, or is declared a Bankrupt, or is absence, &c. charged in execution for debt and remains in close custody, or upon the Gaol Limits for one calendar month, or applies for Relief as an Insolvent Debtor, or assigns his property for the benefit of creditors (d), or absents himself from the meetings of the Council for three months without being authorized by a resolution of the Council entered on its minutes (e), his seat in the Council shall thereby become vacant. (ƒ)

(z) See sec. 115. As to the effect of the appointment, see note z to sec. 116.

(a) See secs. 113, 175, 176 and 179.

(b) This is the first time that in the Municipal Law of Upper Canada an attempt has been made to define the duties of Mayors.

(c) This and the following sections are general in their application. They do not relate exclusively to Mayors of Cities and Towns, but to members of the Council and not only to the members of City and Town Councils but to the members of all Municipal Councils.

(d) Among the several contingencies enumerated, death is omitted, but of death the necessary consequence is a vacancy of office. (See secs. 122, 148, and 149.)

(e) If the member absent himself with the authority of the Council, a resolution to that effect ought by the Clerk to be carefully entered on the minutes.

(f) If any of the events described should happen, the seat thereby becomes vacant. No judgment on a quo warranto is necessary to make it void.