Elections

122.-In any case provided for by the one hundred and New sixteenth or one hundred and twenty-first sections (g), or in provided for. ease a person elected to a Council neglects or refuses to accept office or to make the necessary declarations for office within the time required (h), or in case a vacancy occurs in the Council caused by death, judicial decision or otherwise (i), the Head of the Council for the time being, or in case of his absence or of his office being vacant, the Clerk, or in case of the like absence or vacancy in the office of the Clerk, one of the members of the Council (j), shall forthwith (k), by warrant under the signature of such Head, Clerk or Member, and under the Corporate Seal, require the Returning Officer appointed to hold the last Election for the Municipality, Ward and Electoral Division respectively, or any other person duly appointed to that office, to hold a new Election to fill the place of the person neglecting or refusing as aforesaid, or to fill the vacancy. (1)

office.

123.-The person thereupon elected shall hold his seat for Term of the residue of the term for which his predecessor was elected or for which the office is to be filled. (m)

(g) That is, in case a new Ward Election is required under sec. 116, or a seat has been vacated under sec. 121.

(h) i. e., on the day appointed for the first meeting of the Council, see sec. 113.

(i) Or otherwise-The object is to provide for every state of circumstances that may render a new election necessary. It is a question how far this section and sec. 148 are reconcilable. Each provides, apparently, for a vacancy in the office of "head of the Council," and each gives a mode different from the other for filling the office. Probably sec. 148 may be held to apply to "Heads of Councils" who are not elected by the people, that is to all heads of Councils except Mayors.

(j) The order must be observed. First, the head; if no head, then the Clerk; if neither head nor Clerk, then one of the members of the Council.

(k) Where a thing is directed to be done by a Statute "forthwith" it means within a reasonable time. (The King v. Justices of Worcester, 7 Dowl P. C. 789) The word "immediately" is more strictly construed. (The King v. Justices of Huntingdonshire,, 5 D. & R. 588. The Queen v. Aston, 1 L. M. & P. 491.)

(2) The person to be appointed is the person who was appointed to hold the last past election, unless some other has been appointed by the Council to hold casual elections, or to hold the particular election. It does not appear to be left to the discretion of the Head, Clerk, or Member, who issues the warrant to nominate the Returning Officer. The warrant is to be under the signature of the person issuing it, and to be under the seal of the Corporation.

(m) The general election of Mayors is to take place at the annual general election, on the first Monday in January in each year.

Non-election

of Members

not to pre

ization of

Council.

124.-In case such non-election (n), neglect or refusal as aforesaid (0), occurs, previous to the organization of the Counzati cil for the year (p), the warrant for the new Election shall be issued by the Head or a Member of the Council for the previous year, or by the Clerk in like manner as provided for by the one hundred and twenty.sec nd section (9), but such neglect or refusal shall not interfere with the immediate organization of the new Council, provided a majority are present of the full number of the Council. (r)

Time for holding and

Election.

125.-The Returning Officer shall hold the new election notice of new at furthest within eight days after receiving the warrant (s), and shall, at least four days before the election (t), post up a public notice thereof under his hand in at least four of the most public places in the municipality, ward, or electoral division. (u)

Appointment if election neglected or declined.

APPOINTMENTS IF ELECTION NEGLECTED.

126.-In case at any annual or other election the electors, for any cause not provided for by the 99th and 100th sections (v), neglect or decline to elect the members of Council for a municipality on the day appointed, or to elect the requisite number of members (w), the other members of the Council, or if there are none, then the members for the preceding year, or the majority of them respectively, shall appoint as many qualified persons as will constitute or complete the number of

(n) See sec. 116.

(0) See sec. 122.

(p) The organization of the Council is effected by the members elect (being at least a majority of the full number of the Council) making the necessary declarations, and then electing a head, except in cases where the Mayor has been elected by public vote, in which event the Council is organized whenever the necessary declarations have been made by the Mayor and at least a majority of the whole number of members of the Council. (See secs. 115 and 132.)

(8) As to computation of time, see noter to sec. 98.

(1) As to computation of time in this case, see note d to sec. 97. (u) As to notice, see note d to sec. 97.

(v) Which provides for the failure of an election by reason of a riot or other emergency.

(w) The power to proceed under this section may be exercised, first, in case the electors neglect or decline to elect the necessary members on the day appointed for the election, and, secondly, in case they neglect or decline to elect the requisite number of members.

members requisite (x); and the persons so appointed shall

(z) There is a difference between an election and an appointment. (The Queen ex rel. Beaty v. O'Donoghoe et al. 3 U.C. L.J. 75; see also sec. 129 of this Act.) An election, whether by the electors at large or by the members of the Council, is by vote, and usually consists in the choice of the members of the Council by the electors of the municipality, or of the head of the Council by the members of the Council elect,-both of which proceedings are in general essential to the organization of the Council. (Note p to sec. 124.) An appointment is, properly speaking, an act of the Council after it has been organized. Thus: the Clerk and other officers are appointed, not elected, by the Council. (See sec. 150.) The section under consideration speaks of appointments-not of elections. It therefore becomes material to consider precisely under what circumstances the power of appointment under the section can be exercised. If there be an entire failure to elect members on the day fixed for the purpose, the power to appoint would of course devolve on the Council of the preceding year, which, having been duly organized, continues in office until superseded by the organization of a new Council. But if the failure to elect be only partial that is to say if the failure be to elect the requisite number of members there is more difficulty in interpreting the meaning of the Legislature, as expressed in this section. In such an event, it is declared that "the other members of the Council, or if there be none, then the members for the preceding year, or the majority of them respectively, shall appoint," &c. Does the word "majority" refer to the new or incomplete council, or does it refer only to the old and complete council? If it refers to the former as well as the latter, does it do so under all circumstances? Is there any difference in this respect between a majority and a quorum? Is it necessary that there should be such a majority as constitutes a quorum? There is much room for argument, and the Editor cannot do more, in the absence of decided cases, than express his individual conviction. It requires a majority of the whole number of members of a council to form a quorum. (Sec. 140.) The decision of the question turns more or less on the word "majority." As applied to the old council, it undoubtedly implies a majority of the whole number of members. If applicable to the new council, the question is, whether it means a majority of the full members of that council also, or only a majority of those elected, though less than a majority of the whole: in other words, whether the expression, "or if there are none," means none at all, or none competent to organize as a council. Less than a majority of the whole number of members requisite could not, it is apprehended, organize. But even on the word "requisite," as used in the section, the same question presents itself in another form. Does it mean requisite to complete the full number of the council, or only requisite to complete a sufficient number to enable them to organize? If, when the council is incomplete, the members elect, no matter how few or how many, could appoint the remainder, and if, from any cause, a minority of the whole council only were chosen, it would devolve upon the minority to appoint the majority-a thing which, it is submitted, the Legislature never contemplated. Were this the case, in the city of Toronto for instance, with a council ordinarily of twenty-four members, if from any cause, returns should be

Trial of con

tions.

accept office and make the necessary declarations under the same penalty in case of refusal or neglect, as if elected. (y)

CONTESTED ELECTIONS OR APPOINTMENTS.

127.-In case the validity of the election or appointment tested Elec (2) of a Mayor, Warden, Reeve, Deputy Reeve, Alderman, Councilman, Councillor, or Police Trustee, is contested, a Judge of either of the Superior Courts of Common Law, or the senior or officiating Judge of the County Court of the County in which the election took place, may, in term or vacation, try the validity thereof (a); and any candidate at the election, or any elector who gave or tendered his vote thereat, may be the relator for the purpose. (b)

made by one ward only, the two aldermen and two councilmen chosen for that ward would have it in their power to appoint the remaining twenty members of the council. This would be absurd, and dangerous to municipal government. It is upon the whole submitted, but not without some doubt, that to enable a new but incomplete council to appoint under this section, there must be elected at least a majority of the whole number necessary to enable the council to organize; and that if there be not that number, or if there be none, it devolves upon the Council of the preceding year to appoint all (or the number deficient) of their successors.

(y) See sec. 175, et seq.

(2) The difference between an election and an appointment is explained in note z to the preceding section. Before the passing of this act, the courts had not power, under the municipal acts then existing, to determine the validity of an appointment. (The Queen ex rel. Beaty v. O'Donaghoe et al, 3 U. C. L. J. 75.)

(a) The trial of a contested election may be had by any Judge of either of the superior courts of common law, or by the senior or officiating Judge of the county court, &c., all of whom possess concurrent jurisdiction, which jurisdiction is exercisable either in term or vacation.

(b) The relator is the person upon whose application the jurisdiction of the Judge is put in motion. It is to be observed that "any candidate at the election, or any elector who gave or tendered his vote at the election," may be a relator. The right to be a relator is thus confined to two classes; first, candidates; second, electors; and the right of the latter is restricted to such electors as either voted or tendered their votes at the election. It is presumed that if the election of a head of a corporation, not being a mayor of a city or town, be questioned, any member of the council who either voted or tendered his vote for such head, would be an "elector" within the meaning of the section. If an election or an appointment be questioned by any other than the two classes mentioned, it must be done, not by the summary mode pointed out in the next succeeding section, but by the more expensive and dilatory course of an information in the nature of a quo warranto. (See The Queen ex rel. Davy v. Bogart et al. 2

PROCEEDINGS FOR THE TRIAL THEREOF.

128.-The proceedings for the trial shall be as follows:

Time for

security and

ed.

1. If within six weeks after the election, or one calendar limited, and month after acceptance of office by the person elected (c), the proof requir relator shows by affidavit (d) to any such Judge (e) reasonable grounds for supposing that the election was not conducted according to law, or that the person declared elected thereat was not duly elected (f); and if the relator enters into a recognizance before the Judge, or before a commissioner for taking bail, in the sum of two hundred dollars, with two sureties (to be allowed as sufficient by the Judge upon affidavit of justification) in the sum of one hundred dollars each, conditioned to prosecute the writ with effect or to pay the party against whom the same is brought any costs which may be

U. C. Prac. Rep. 18.) It is not necessary that a relator who was a candidate should show in his application to oust the successful candidate that he himself is qualified to accept office. (The Queen ex rel. Mitchell v. Adams, 1 U. C. Cham. R. 203.) An elector who Dimself has been instrumental in electing a candidate, will not be allowed afterwards to complain of the election of that candidate upon the ground of his being a contractor, &c., unless he the elector show that at the time of the election he was ignorant of the disqualification of the candidate. (The Queen ex rel. Loyall v. Ponton, 2 U. C. Prac. Rep. 18.) Upon similar principles it has been held that a councillor who is instrumental in the election of a particular person as Reeve or Deputy Reeve, cannot afterwards be allowed to move against the person so elected Reeve or Deputy Reeve. (The Queen ex rel. Rosebush v. Parker, 2 U. C. C. P. 15.)

(e) The first point for consideration is the time within which the application is to be made, that is, "within six weeks after the election, or one calendar month after the acceptance of office by the person elected." In the computation of the six weeks, the day of the election is to be excluded So it would appear that six weeks at all events is allowed, to impeach the election, although the office may have been accepted more than a calendar month. If the application be not made within the six weeks, the test is then whether the office has been accepted more than one calendar month. (The Queen ex rel. Rosebush v. Parker, 2 U. C. C. P. 15.)

(d) It seems, though it has not been expressly decided, that the attorney of the relator may act as a commissioner for taking the recognizance and affidavit. (The Queen ex rel. Blaisdell v. Rochester, 12, U. C. Q. B., 630.)

(e) Any such Judge. See note a to sec. 127.

(f) The grounds of the application are here specified, viz. either that the electien was not conducted according to law, or that the person declared elected was not duly elected. In one sense the first branch of the clause involves the second. If the elections have not been conducted according to law, the person declared elected could not in all probability be duly elected." But the converse of the rule will not