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l=.-LUU-: \aJ

FULL TEXT

-CF-

JUDIJE ELLIOT'^ JUDI|MEWT

-IN TIIK-

LONDON ELI'CTION CASE,

1802.

FULL TEXT

-OF-

jUDE|E ELLIOT'^ JUDI^MENT

-IN THE-

LONDON ELECTION CASE,

1892.

THE RECENT LONDON ELECTION.

The following is a verbatim report of the judj^ment delivered
by His Honour Judge Elliot, the Senior Judge of the County of
Middlesex. It has reference to the recent electoral contest for the
City of London between the Honourable Mr. Carling and Mr.
Hyman, which, the public are aware, terminated in the election of
the former.

There have appeared in various newspapers so many garbled
accounts of this judgment, and so much misrepresentation, that
it is deemed desirable to give it verbatim as delivered, and thus
leave the public to form their own opinion.

It is proper to observe that during the preparation of the
Voters' List, in the fall of 1891, for London, the Revising Officer,
Mr. J. H. Fraser, Q. C, had some eighteen hundred cases before
him, in which he had to decide what names should stand on the
list and what should be removed. On both sides, Conservative and
Liberal, numerous applications were made to remove names from
the list. Among the ap])licatioMs was one by a person nam(!d Lilley
to remove the name of one Allin and some fiv(! hundred others,
because, as he said in his notice, they were " not qualified ",
giving no other ground or reason for tlieir disqualification. A
number of these persons thus objected to, about 200, refusetl by
their counsel, to appear and put in any defence. They said ;
" We are entitled to know upon what ground our rights are
challenged, and we will not be harassed by being called upon to
defend them at the caprice of a man who is only recklessly tiying
to annoy us." Such was tiie position they took, and it will be
seen by the judgment that in this position they were sustained
by the Judge. No sooner, howevtr, had the Judge given his
judgment, which he did at the urgent solicitation of Mr. Aylesworth,
Q. C, the Liberal counsel, than he was assailed with incredible
bitterness. He was termed a Tory partisan, incapable of doing

justice ; and all for what ? IJecuuse he had dared (mind, actually
dared) to give an independent judgment ! Even his family
matters were deemed fit subjects i'or criticism and attack. He
was comjjared with the bloody-minded Judge Jetferys, and
reminded that, two hundred years since, a celebrated personage,
referring, it is sui)j)osed, to StralTord in the time of Charles I.,
had ended his life on the scaffold for a similar wrons-doing.

Had this scurrilous abuse been confined to the London
Advertiser, which led the way, there need not have been much
surprise. The same })a})er had, in a previous election case, pro-
nounced Chief Justices llaggarty and Gait and Mr. Justice
Gwynne, now of the Supreme Court, to be Tory partisans, from
whom such a decision as they gave could only be ex})ected. Had
all this, we say, been confined to this inferior and scurrilous
London print, there need not liave been much surju'ise ; but,
when a journal, calling itself lespectable, like the Globe came
out with three columns of matter full of misrepresentation and
designating Mr. Carling as the "member for Judge l^lliot," it is
time that the real fjicts should be known.

/ To meet the cry of bogus votes having given Mr. Carling a
majority, Mr. Helhnuth, the counsel for the appellants, offered to
waive every objection to the disputed notices in the case of at
least forty to fifty of his clients, and to stake the result of the
election upon the votes of t!iose persons who had refused to
appear before the Revising Officer, and he offered forthwith to
produce these forty to fifty voters (all of whom had voted at the
last election) who were easily accessible. This number, Mr.
Hellnmth said, would appear and go into their individual qualifi-
cations, if this consent were given, and they would show that
their right to vote was beyond dispute. This would place Mr.
Carling iv. a majority of unquestionable votes, but the offer was
flatly refused by the counsel acting for Mr. Hyman and the
Liberal party, thus showing the hollowness of the outcry that
had been raised that ]\Ir. Carling had gained his majority by the
inclusion of bad votes.

The foUowiuo is the judj^Miient now rendered famous, and
which, it is conceived, may he more properly attacked by arjiu-
ment than by personal abuse : —

In the Matter of tub Appeal Under the Electokal

Fkanchise Act.

LEWIS ALLIN,

AND

FRANK WALDER LILLEY,

(Appellant),

(Respondent).

In November last an appeal was heard before me as to the
validity of a notice given by Lilley calling in question the right
of AUin to have his name registered on the Voters' List for the
City of London. I then expressed my opinion that this notice
was invalid for the reason that it did not conform with the
requirements of the Domini(}n Franeiiise ki:t Had this
expression of opinion been carried into practical effect, the name
of Allin and others similarly situated would have been retained
on the Voters' List unaffected. But a mandate forthwith issued
from the Court of Queen's I'ench adjudging that this description
of notice was sufhcient, and requiring the Revising Oflticer to
proceed. Under this compulsion he did proceed, treating the
alleged notice as sufficient, whereupon a considerable number of
persons by their Coim.sel stood upon what they deemed to be
their rights, and lefused to make any defence, or did not attend
at all.

This decision of the ( 'ourt of Queen's Bench was appealed
from. But the Court of Appeal declined to give a formal judg-
ment on the ])oints submitted, deeming it uiniecessary to do so.

On the 3Lst December last an api)Hcation was made to me,
on behalf of the respondent, for my judgment in the matter of
this appeal. I then declined to interfere, as the case at that time
was pending in the Court of Appeal. But now that it has passed

tlii'nn<;h that ordeal, T am nf,'ain solicitnd, on behalf of the
ii'spoiideiit, to give a decision which, it appcsars, the Act demands.
To this solicitation an objection is raised on behalf of the
appellant, that the intention is to submit the case to the Supreme
Court, and that anything in the shape of a judgment upon my
part would be premature. Mr. Aylsworth, for the respondent,
affirms that there is scarcely a reasonable expectation that the
Supreme Court would entertain the appeal, giving reasons for his
statement, which T need not further refer to Mr. Hellmuth, for
the appellant, is of a contrary opinion. But 1 think 1 may con-
clude from his observations that he does not very decidedly oppose
a decision upon my part at this juncture, and for my jjurt I would
rather give it now.

T.ooking in the first place at the Law contained in the
Dominion Franchise Act, we find that by Section 19, Sub-Section
2, it is enacted that any person desiring to object to or in any
way to amend or correct the original voters' list or eitlier v f the
sup])lementary lists, on the final revision shall have the right so to
object, * * • " if he has at least two weeks before the day tixed
for such final revision, deposited with, or mailed to the Revising
Officer by registered letter at his office or place of address a notice
in the form D in the schedule to this Act," and then follows the
requirement that a notice in the like form is to be delivered or
mailed by registered letter to the party to whom the objection is
made. Turning to this Form D we find that the notice prescribed
is " that I (that is, the objector) will apply to have the list of
voters for Polling District No. of the said Electoral District

for the year as preliminarily revised, amended, added to or

corrected, as the case may be ;" then says the Form, " state the
name or names objected to, with the grounds therefor."

Now upon the interpretation of this word grounds rests the
entire controversy.

The following diagram shows the form of list given in the
Act to be prepared by the Revising Officer, and 1 have marked
on it the manner in which the name of the appellant Allin

appears upon it, and the letter \ indicates that his qualification
is for income :

No.

Namk in Ft'Li.. Post OFFirK

Oicri'.VTiON.'

Ql'ALIFr-
CATION.

DehcRII'TION

PltOl'EUTY.

Allin, Lewis. London, instrumts ^' l^^^^ Hotel.

Now, this schedule or form of list contains the assertion that
Lewis Allin is qualified as an income voter, and Lilley disputes
his claim in the following manner: — He says in his notice that
he will apply to have the list of voters for Polling District No. 1,
as preliminarily revised, amended by removing therefrom the
following names for the grounds hereinafter stated. Then follow
a number of names, that of Allin being among them, with a copy
of the schedule above referred to, only there is added a column
headed " grounds for amendment," namely " not qualified." Some
of the names are of persons stated to be tenants, owners, income,
etc. — Allin is on the list for income, and what is called the ground
" for amendment " is that he is not qualified, meaning that he is
not qualified for income. Now the question is, are there any
grounds stated by Lilley?

To see how the matter will come out, let us put it in the
form of a dialogue.

Allin — I claim to be a voter for income. Lilley — I dispute
your claim. Allin — Why ? Lilley — Because you are not quali-
fied. Allin — Why do you say 1 am not qualified ? Lilley —
Because you are not qualified. Allin — But what ground have
you for saying I am not (qualified ? Lilley — Because you are
not qualified.

To proceed further would only bo to follow endless circular
tracks, the result of which could only be " you are not qualified,
because you are not qualified ",

In order to throw lit^ht on this snbject let ns see upon what
L;rounds Allin's cliiiin to be u voter for income must stand. 1.
He must be of age. 2. He n.ust be a l>r,tish subject. ?>. He
must reside in the Polling District in which he seeks to be
registered. 4. He must have an income of at least $300 a year.
."). He must have earned that income during the last year. G.
He must have resided in Canada for the last preceding year.

Now, these are the grounds I submit on which Allin's claim
must rest, and his failure to sustain ary one of them would ex-
clude his name from the list. 1 take it that grounds and reasons
are synonymus terms, and 1 am unable to see any ground or
reason for exclnsion in the bare assertion " you are not qualified
for income ". The assertion " you are not qu;ilifi(!d for income "
is a conclusion to be drawn from the want of one or other of the
requisites I have mentioned ; it is not a (jruund or a reason It
is a deduction to be drawn from certain ])remise.=.

]f this word nrouiKls is to be retjarded as meaningless it is
an unfortunate expression. It was very easy to have said that
a sinijtle complaint in writing was all that was necessary. But
when this form requires the grounds to be stated surely something
more is requisite than a mere naked complaint like this of
Lilley's.

There is also another income qualification. By Sub-Sec. ]
of Section 3 a person is entitled to be registered ns a voter who
has a life annuity of $100 a year secured on land, and to main-
tain his claim he has to fulfil the conditions 1 and 2 above
mentioned. 8. He must have been a resident in the electoral
district for one year previous. 4. He must be in the receipt of
this annuity for the year previous. 5. It must be secured on
land. 6. He must be registered in the particular polling district
in which he resides. These variations of the income qualification
render it more necessary that an objecting yiarty should parti-
cularize the grounds upon which he intends to make the attack.

The Revising Officer in the preparation of the list in June
has to collect the names of those who appear qualified from the

assessment rolls and the provincial and municipal lists and from
solemn declarations, and to register their names subject to subse-
quent corrections. In this I think he is entitled to the benefit of
the maxim "omnia presumuntur rite esse acta" until his un-
worthiness is shown. Accordingly, those persons whose names
he has placed upon the list have a 'prima facie right to be there
as voters, and from this right 1 conceive they can only be dis-
placed for go( d and suihcient reason, which they are entitled lo
know with at least reasonable certainty.

It is a very easy thing to scatter hundreds of notices of
objections founded on mere conjecture, and by way of experi-
ment with the result that tlie parties thus objected to if within
ten miles of the polling place, on being served with a summons,
are to obey it without any payment whatever for expenses ; or if
they do not attend their names may be struck off the list, and
they are likewise liable to a fine of $o. All this tends to
strengthen the position that a party having a prima facie right to
be on the list is entitled to 1 ave some solid ground or reason why
that right is to be invaded, before he is subjected to ihese
punitive conditions.

To return to what transpired upon the issue of the mandamus

from the Court of Queen's Bench requiring the lievising Officer

to proceed. It appears he did so, considering that it was no part of

his duty to incur expense and loss of time by entering into an

adverse contention with the Court of Queen's Bench. He then

went on and dea^t with various cases on the notices wliich I

deemed to be invalid. Of these cases there were many in which

i the parties, by their counsel, refused to make any defence, relying

i|^ upon the invalidity of the notices they had received; and there were

others who made no appearance at all. Tiie names of these

persons are retained on the list, and are distinguished by the letter

A attached to each. These [tersons, or some of tiiem, it appears,

'' voted at the recent election, and the question is whether these

persons were entitled to vote. To this puint the controversy is

. reduced, Let me here refer to some other portions of the Act to

see if there is any authority for treating such a notice as this as
sufficient by way of amendment or correction.

By Sec. 20 Sub-Sec. 3 " no application to add to or to remove
a name shall be dismissed on account of error in the nanu,
surname or designation mentioned therein, provided such error
is corrected on or before the final revision, and provided that the
Revising Officer is satisfied that the application was reasonably
certain, and that no person concerned is misled by such error."
This shows what descriptions of innocent error shall not exclude
a voters name. But it does not favor the inference that errors
of a more serious character like that we are considering are to be
deemed equally venial. By the same Sec. 20 the Revising
Officer is authorized to amend or correct the list, but his power is
subject to this condition, that " notice has been given as afore-
said," by which is meant the notice D. Sec. 10 authorizes the
Revising Officer to retain the name of any person entered on the
original list although his qualification is incorrectly entered thereon
" if it appears that such person is entitled to be registered on the
" list of voters as possessed of any of the qualificitions set forth
"in this Act; but the Revising Officer shall enter the name of
" such person on the first supplementary list with the necessary
" alterations."

And by Sub-Sec. 4 Section 20, " if on the hearing of jiny
objection to any name on the original or su})plementary list of a
polling district it appears that the name or qualification of the
person whose name is objected to is incoriectly entered on the
list, but that he ])ossesses such (qualification as entitles him to be
registered thereon, the Revising Ollicer shall retain such person's
name thereon making the necessary corrections ; or if it appears
that the person whose name is objected to is not entitled to be
retained on such list, but that he po.ssesses such qualification as
would entitle him, if he had given the necessary notice, to be
placed on the list for any other ])olling district, the Revising
Officer can make the change."

Thus there are extensive powers of correction and auiend-

merit in the Act, but they are in my opinion dependent on the
condition that a proper notice has been given in the first instance
so as fairly to require the party objected to enter upon his
defence. I do not say that this notice of objection must contain
all the grounds I have above enumerated. Probably the mention
of one of them would suffice to require the party objected to to
appear, and having done so the lie vising Officer may proceed
or not under the amending clauses of the Act in his discretion.

Under the English system of registration for voting purposes
the duty of first collecting the names and preparing the lists
devolves on certain officials called overseers. There are points of
similarity and divergence between our Act and the Imperial one.
But no authority has been cited, and I believe none can be cited,
to show that such a notice as this in question has ever been held
sufficient.

T shall refer to some of these cases :

In Hartley v. Halse, 22, Q. B. Div., 200, tiie Voters' List
comprised three divisions, almost [)recisely similar to our Pro-
vincial Voters' Lists, compreheiKiing first parliamentry and
countv voters; 2, parliamentary voters only, and 3rd, county
voters only. The objection to the name was that it did not
specify the particular division to which the objections referred.
It was held that this was a mere mistake, and that the notice
referred in an unmistakable manner to the list intended. Cole-
ridge C. J., said : " Where a statute directs that a particular
form shall be used, and a form is used which omits some essen-
^'tial element in the statutory form, the use of the defective form
invalidates the proceeding."

Borough of Battersea V. Clethem, 4 L. T., Rep. 115.— The
question was whether the description of the objector given in the
notice was in compliance with the form given in the Act. The
Revi.sing Barrister decided that it was, and expunged several
names in consequence. This deci sion was reverse d. Lord Cole-
ridge C. J., said that the notice was not according to the form.

He said furtlier that tliouj^lj it was true that the Act provides
" tliat the disregard of any form shall not invalidate, these
" words do not mean that a total disregard of all forms is pro-
" tected. The notice does not give the person objected to the
" information as to the person objecting which the Act intended
" to be given and the absence of wiiich miglit pnt him to incon-
'• venience. I tlierefore hold," he said, " that in not following the
" form in this respect the objector has not only not followed the
" form but has not in substance comjjlied with the enactment," in
which the other judges concurred.

In Bridges v. Miller, 20, Q. B. Div., 2(S7, a notice of objec-
tion that you do not reside at 1 2 Clifton St., Norwich, was held
bad because a valid notice of objection should have stated that
he had not resided there for a year i)ast. Lord Coleridge held it
was no notice at all and the other judges concurred.

In Humi>hrey v. Earle, 20, Q. B. Div. 294, the form under
the Act of 18cS5 requires a notice of objection to contain a descrip-
tion of the objector's place of residence (as our notice D, does).
The description here was wrong, or at all events it was imperfect.
Pollock, B., said the point is technical, but on the other hand it
is important that these notices should strictly follow the statutory
form.

In Smith v. Chandler, ">, L. T. Bep., 110, a case was reserved
as to the suflficiencv of an attestation clause in which the date
was omitted. This afi'ected 2G0 names. Loi'd Co eridge said,
" It was suggested that the barrister might have amended, but
he rightly held he could not amend. It was not a case of
mistake, but the form had deliberately been departed from " Mr.
Justice Manisty said ihe omission of the date was not a mistake.
It was done knowingly and intentionally, and the bairister was
right in holdins; it to be fatal to the claim. In this case the
ar'^lic?.<^^ion was to add names, and the attestation was ini{)ortant
3 it must have been before a certain date. In this case
tiie proviso in the Act was cited that a disregard of the form shall

not make a notice bad. But to that Mr. Justice Hawkins replied
that it was so in the case of a mistake, which the Court held this
was not.

In a very recent case reported in 8, L. T., Rep. 299, the
magistrates refused a tavern license because they said the case
had already been disposed of. The Court ordered a mandamus
to issue to require the Justices to state the grounds upon which
their decision was arrived at. Sir Henry Hawkins said there
were four ^r()unds on which the renewal of the license might
have been refused. The a.p])Iicant was entitled to know upon
what ground it was refused. Mr. -lustice Wills .said, there being
four grounds on wliich the renewal of the license might be
refused, the magistrates ought to have specified the ground on
which it was refused. Tliis last case has no immediate reference
to parliamentary voting, but serves to show tliat where there are
certain grounds wliy a privilege may be denied the specific
grounds, (jr one or other of them must be stated.

There are other English cases which beai upon the subject
of this appeal, but so far as 1 can discern they all lead to one
result, namely, that a person whose name is on the original voters'
list is not required to defend liis position unless he has received
a notice di.stinctly stating one or more sulUcient grounds for his
exclusion. If it be said that the law on this subject is much
stricter in England than it is here, and stress is laid upon Sec. 26,
where it is said the lievising Officer shall not be bound by forms in
force in Courts of llecord. I answer, that the Imperial Act con-
tains the proviso already mentioned which our Act does not,
namely, that the disregard of any forms not limited to forms used
in Courts of Kecord shall not invalidate. Nevertheless, we see
that a deviation from the forms in the English Act, much less
important than in the case of this Appeal, has been held to be
fatal I now come to what has transpired in our own Courts in
relation to this subject. In Lilley v. Allin, 21 Ont., Eep. 424, an
opinion was expressed by the learned Judges of the Court of
Queen's Bench that the notice in question was sutficient, and by

mandamus tlie Revising OlHcer was required to proceed, which
he did upon the notices, tlie invalidity of which was then, as
now, the subject of appeal. Scarcely any decision could be more
briefly stated, and the want of a reasoned judgment is unsatis-
factory, especially as on the cardinal question as to the power
of the Court to control the lie vising Officer there is a wide
divergence between that decision and the considered judgment of
the Divisional Court of Chancery in Hessin v. Lloyd.

In the Court of Appeal to which the case was carried no
judgment or costs were given, but three of the judges expressed
an opinion that the notices given were sufficient. I entertain an
unfeigned respect for opinions expressed by the learned judges of
that Court, and I would gladly, if I could, shelter myself from
inevitable odium by conforming to their expression of opinion.
But it is evident from the language used by these learned judges,
or at least by some of them, that they were rather reluctantly
drawn into any expression of opinion on the subject, and one of
them described any opinion expressed by the Court to be simply
an obiter dictum.

In this situation it appears to bo imperative that I should
give judgment; and for the reasons I have given, 1 can arrive at
no other conclusion than this. That the notice in question, and
the other similar notices, were and are invalid. I repeat this,
although this notice of Lilley has been specially dealt with by me,
because it forhied the particular object of the api)eal by Allin.
Still, it was understood all along that it was only representative
of other instances where similar notices omitting the "rounds of
objection had been given, not for income only, but for other quali-
fications, and all these are involved in the result of Allin's appeal.

The ett'ect of this invalidity is, that the recipients of such
notices were not required, unless they chose, to appear before the
Revising Officer to maintain their position, and their rights as
voters have not been prejudiced by such non-attendance. Their
names, as I learn from the Revising Officer, are noted on the list
which was used at the recent election with the letter A, signify-

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ing that their claims were under appeal, and so they are easily
distinguished.

In conclunon, I hold that this appeal is sustained, and that
these persons thus distinguished by the letter A were entitled to
vote. Whether they did so or not is a matter in which I am not
now concerned.

If they did vote, 1 hold their votes must be treated as aood
votes, and the declaration of the lieturning Officer as to the result
of the Poll does not requi -e any change so far as I am concerned.

W. ELLIOT,

9th March, 1892. County Judge Middlvsex.

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