Appendix. THE BALLOT ACT, 1872. (35 & 36 VICT. CAP. 33.) An Act to amend the Law relating to Procedure at Parliamentary and Municipal Elections. [18th July, 1872.] WHEREAS it is expedient to amend the law relating to procedure at parliamentary and municipal elections: Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: Poll at elec tions. PART I. PARLIAMENTARY ELECTIONS. Procedure at Elections. Sect. 1 relates only to candidates at parliamentary elections. 2. In the case of a poll at an election the votes shall be given by ballot. The ballot of each voter shall consist of a paper (in this Act called a ballot paper) showing the names and description of the candidates. Each ballot paper shall have a number printed on the back, and shall have attached a counterfoil with the same number printed on the face. At the time of voting, the ballot paper shall be marked on both sides with an official mark, and delivered to the voter within the polling station, and the number of such voter on the register of voters shall be marked on the counterfoil, and the voter having secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in a closed box in the presence of the officer presiding at the polling station (in this Act called "the presiding officer") after having shown to him the official mark at the back. Any ballot paper which has not on its back the official mark, or on which votes are given to more candidates than the voter is entitled to vote for, or on which anything, except the said number on the back, is written or marked by which the voter can be identified, shall be void and not counted. After the close of the poll the ballot boxes shall be sealed up, so as to prevent the introduction of additional ballot papers, and shall be taken charge of by the returning officer, and that officer shall, in the presence of such agents, if any, of the candidates as may be in attendance, open the ballot boxes, and ascertain the result of the poll by counting the votes given to each candidate, and shall forthwith declare to be elected the candidates or candidate to whom the majority of votes have been given [and return their names to the clerk of the crown in chancery]. The decision of the returning officer as to any question arising in respect of any ballot paper shall be final, subject to reversal on petition questioning the election or return. * * * * The duty is imposed upon the presiding officer to deliver to the voters voting papers bearing the official mark, and to be present during the election at the polling stations, so that the voters, before depositing their voting papers in the ballot box, can show to him the official mark on the back thereof. These duties are merely ministerial, and an action will lie against the presiding officer for any negligent performance thereof by a party aggrieved, although the breach thereof be not wilful or malicious. The presiding officer may do, by the clerks appointed to assist him, many acts which he is required to do under this Act. Where a clerk is so appointed, the presiding officer will not be responsible for the acts of commission or omission of such clerk in the performance of the duties delegated to him, as the relation of master and servant does not exist between them. Each is an independent officer. The Act does not impose upon the presiding officer the duty of ascertaining, before the voter deposits a voting paper in the ballot box, whether the official mark is on such paper. Per BOVILL, C. J., and GROVE, J. (Pickering v. James, L. R. 8 C. P. 489; 42 L. J. C. P. 217; 29 L. T. (N.S.) 211.) Where a returning officer had neglected to mark on the counterfoil the number of the voter on the register in a municipal election, the petition under the repealed Corrupt Practices (Municipal Elections) Act, 1872, was allowed to be amended by adding a paragraph alleging this fact. (Pickering v. Startin, 28 L. T. (N.S) Ĭ11.) If the returning officer mark the number of the voter in the register on the ballot paper instead of on the counterfoil, the ballot paper is void. (Woodward v. Sarsons, L. R. 10 C. P. 733; 44 L. J. C. P. 293; 33 L. T. (N.S.) 867.) As to what marks made by a voter will and what marks will not vitiate a ballot paper, see the Third Division of this work, p. 322, and notes on Form K., Eighth Schedule, Part II., of the Municipal Corporations Act, 1882, p. 264. There is no return to the clerk of the crown in municipal elections. (Municipal Corporations Act, 1882, Third Schedule, Part III., 6.) All Appendix. Sect. 2. Appendix. documents which in the case of a parliamentary election are to be forwarded to the clerk of the crown are to be delivered to the town clerk. (See Part II. of this Act.) Note s. 2. The last provision of this section relates to the voting of a returning officer, and is omitted as it applies only to a parliamentary election. The provision relating to a presiding officer at a municipal election will be found in sect. 58 (5) of the Municipal Corporations Act, 1882. Offences in respect of nomination papers, ballot papers, and ballot boxes Offences at Elections. 3. Every person who, (1.) Forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to the returning officer any nomination paper, knowing the same to be forged; or (2.) Forges or counterfeits or fraudulently defaces or fradulently destroys any ballot paper or the official mark on any ballot paper; or (3.) Without due authority supplies any ballot paper to any person; or (4.) Fraudulently puts into any ballot box any paper other than the ballot paper which he is authorised by law to put in; or (5.) Fraudulently takes out of the polling station any ballot paper; or (6.) Without due authority destroys, takes, opens, or otherwise interferes with any ballot box or packet of ballot papers then in use for the purposes of the election; shall be guilty of a misdemeanor, and be liable, if he is a returning officer or an officer or clerk in attendance at a polling station, to imprisonment for any term not exceeding two years, with or without hard labour, and if he is any other person, to imprisonment for any term not exceeding six months, with or without hard labour. Any attempt to commit any offence specified in this section shall be punishable in the manner in which the offence itself is punishable. In any indictment or other prosecution for an offence in relation to the nomination papers, ballot boxes, ballot papers, and marking instruments at an election, the property in such papers, boxes, and instruments may be stated to be in the returning officer at such election, as well as the property in the counterfoils. The offences in relation to nomination papers are punishable under sect. 74 Appendix. of the Municipal Corporations Act, 1882. A returning officer was indicted with having fraudulently placed papers, purporting to be ballot papers, but known to such returning officer not to be ballot papers, into the ballot box. At the trial BLACK BURN, J., allowed the counterfoils and marked register to be given in evidence, and the face of the voting papers to be inspected, so as to show how the votes appeared to have been given. A county court judge, under Rule 64, Part II. of the First Schedule of this Act, had made an order directing the town clerk to produce and show, for the purposes of the prosecution, the counterfoils and the marked register. The court held that this was rightly done, and that they were properly admitted in evidence at the trial. (R. v. Beardsall, L. R. 1 Q. B. D. 452; 45 L. J. M. C. 157.) The mens rea is necessary to constitute any offence charged under this section. (See Aberdare Local Board of Health v. Hammett, L. R. 10 Q. B. 162.) Note s. 3. ment of secrecy. 4. Every officer, clerk, and agent in attendance at a polling Infringe station shall maintain and aid in maintaining the secrecy of the voting in such station, and shall not communicate, except for some purpose authorized by law, before the poll is closed, to any person any information as to the name or number on the register of voters of any elector who has or has not applied for a ballot paper or voted at that station, or as to the official mark, and no such officer, clerk, or agent, and no person whosoever, shall interfere with or attempt to interfere with a voter when marking his vote, or otherwise attempt to obtain in the polling station information as to the candidate for whom any voter in such station is about to vote or has voted, or communicate at any time to any person any information obtained in a polling station as to the candidate for whom any voter in such station is about to vote or has voted, or as to the number on the back of the ballot paper given to any voter at such station. Every officer, clerk, and agent in attendance at the counting of the votes shall maintain and aid in maintaining the secrecy of the voting, and shall not attempt to ascertain at such counting the number on the back of any ballot paper, or communicate any information obtained at such counting as to the candidate for whom any vote is given in any particular ballot paper. No person shall directly or indirectly induce any voter to display his ballot paper after he shall have marked the same, so as to make known to any person the name of the candidate for or against whom he has so marked his vote. Every person who acts in contravention of the provisions of this section shall be liable, on summary conviction before two justices of the peace, to imprisonment for any term not exceeding six months, with or without hard labour. Appendix. An information was laid against an agent in attendance at the polling station at a municipal election for a breach of this section. The defendant Notes ss.4-7 had a copy of the burgess roll, and whilst in the station placed a mark against the name of each voter who obtained a ballot paper, and before the poll closed left the station, and carried to the committee room of his principal his marked copy of the burgess roll, and left it there. There was no proof that the copy of the burgess roll was seen by any person whilst in the room. Held, that there was not sufficient evidence to convict in the absence of proof that information as to the voters was actually communi. cated to any person, and it was not enough that the means of acquiring such information were afforded to any one. (Stannanought v. Hazeldine, L. R. 4 C. P. D. 191.) General powers and duties of returning officer. Keeping of order in station. Can the various offences named in this section be included in one infor mation under 11 & 12 Vict. c. 43 ? The point was raised, but not decided in the last-mentioned case. Sect. 5 relates to the division of counties and boroughs into polling districts. By sect. 46 of the Municipal Corporations Act, 1882, the council may divide the borough or any ward into polling districts. Sect. 6 authorizes the free use of school and public rooms for taking the poll at a parliamentary election. By the Municipal Corporations Act, 1882, Third Schedule, Part III. (1), the provisions of this Act, with respect to the use of a room for taking the poll, do not apply to a municipal election. By sect. 69 of the Municipal Corporations Act, 1882, an election cannot be held in any place of public worship. Sect. 7 makes the register of voters conclusive. By the Municipal Cor porations Act, 1882, Third Schedule, Part III. (1), the provisions of this Act, with respect to the right to vote of persons whose names are on the register of voters, do not apply to a municipal election. As to the title to vote of any burgess, see sect. 51 of the Municipal Corporations Act, 1882. Duties of Returning and Election Officers. 8. Subject to the provisions of this Act, every returning officer shall provide such nomination papers, polling stations, ballot boxes, ballot papers, stamping instruments, copies of register of voters, and other things, appoint and pay such officers, and do such other acts and things as may be necessary for effectually conducting an election in manner provided by this Act. The mayor and the town clerk have to provide these things at a municipal election. (See Municipal Corporations Act, 1882, Third Schedule, Part III. (3) and the same schedule, Part II. (6). See the Third Division of this work on the Practice at Municipal Elections.) 9. If any person misconducts himself in the polling station, or fails to obey the lawful orders of the presiding officer, he may immediately, by order of the presiding officer, be removed from the polling station by any constable in or near that station, or any other person authorized in writing by the returning officer to remove him; and the person so removed shall not, unless |