At a sitting of the Supreme Court in Chambers yesterday morning, Mr Justice Williams gave judgment on the motion for a writ of prohibition to restrain the magistrate (Mr Stratford) from proceeding to carry into effect the order made by him on February 19, 1900, directing the returning officer to ascertain the result of the poll referred to in the said petition, and to make a declaration of the result thereof. The matter was argued by Mr Sim (instructed by Mr Donald Reid, of Milton) in support of the motion and Mr A. S. Adams in opposition.

His Honor said:

This is a motion for a writ of prohibition to stay further proceedings under a petition which had been heard by the magistrate under section 7, subsection B "The Alcoholic Liquors Sale Control Act Amendment, 1895," and "The Regulation of Local Elections Act, 1876." A petition has been presented under these Acts disputing the result of the licensing poll in the electoral district of Bruce on the ground that certain irregularities had taken place at the election. It was alleged that the returning officer had not himself counted each vote; that some of the votes recorded for reduction had not been counted at all; and that there were cases of double voting. The magistrate decided that it was the duty of the page 43 returning officer himself to count every vote, and that, as he had not done so, he ought to do so; and the magistrate accordingly ordered the returning officer to count the votes and to make a declaration of the result, as provided by sections 8 and 9 of the Act of 1895. From any point of view this order is wrong. The returning officer has already purported to make the return prescribed by the Act. Having so done, he is functus officio. If his return is appealed against, and there is any power to correct it, that power could be exercised only by the court itself before which the appeal is brought. That was decided in the case of Cotton v. Hawkins (15, N.Z.L.R., 496). It was admitted by counsel on both sides that the decision of the magistrate that under "The Alcoholic, Liquors Sale Control Act Amendment Act, 1895," it was the duty of the returning officer to count every vote himself could not be supported. I entirely agree with admission. By the seventh section of the Act of 1895, subsection A, it is provided that the returning officer of the electoral district shall take the licensing poll in the manner provided by the Electoral Act of 1893 for taking the electoral poll. By section 7, subsection D, the returning officer is to appoint a deputy-returning officer and a sufficient number of poll clerks for the sole purpose of attending to the business of taking the licensing poll. By section 7, subsection J, the polling booths in each district are to be the same as those used at the taking of the electoral poll. The authority therefore given by subsection D to appoint a deputy-returning officer and clerks must necessarily mean to appoint a deputy-returning officer and clerks for each polling place, as otherwise it would be impossible to take the poll at all. Nothing is said in the Act of 1895 as to what the duties of the deputy-returning officer are, except that he is to see (subsection G) that every voter is provided with one voting paper for the licensing poll. It is necessary, therefore, to ascertain what his duties are from the provisions of the Electoral Act of 1893, as the poll is to be taken in the manner provided by that Act. The duties of a deputy-returning officer in taking the poll are set out plainly enough in sections 112, 113, and 114 of the Act of 1893. He is, at the polling place at which he presides, after the close of the poll, to open the ballot boxes and to ascertain the number of votes for each candidate, and he is to abstain from inspecting the writing on the back of the ballot papers, and take care that no one else sees it. When he has ascertained the total number of votes he is to make up the ballot papers into a parcel, seal it up, and send it to the returning officer. He is also to seal up in separate parcels and send to that officer the unused and spoilt ballot papers and the other documents specified in section 113. He is also to send to the returning officer, inter alia, a list of the total number of votes received by each candidate. Then, after the returning officer has received the various documents from his deputies, he is, by section 116, to make arrangements for counting the votes. By section 117 he is to compare the copies of rolls on which the fact of any person having voted has been noted,. page 44 and if it appears that the same person has voted at two or more polling places he may open any of the sealed packets, take out the ballot papers corresponding to that person's number on the roll, and disallow the votes so given, and he is then again to seal up the ballot papers. By section 120 the returning officer is to make up from the various lists the general state of the poll, and is then to declare the result. It was suggested that section 8 of the Act of 1895, which enacts that the returning officer shall count the votes, meant that he should himself go through all the voting papers and count each vote. But if this were so the poll would not be taken in the manner prescribed by "The Electoral Act, 1893." Section 8, however, is perfectly reconcilable with the provisions of the Electoral Act of 1893. That Act itself contemplates that the votes shall be counted by the returning officer, only they are to be counted in the manner prescribed by that Act. Section 116 of the Act of 1893 provides that the returning officer is to make arrangements for counting votes as soon as practicable after the close of the poll. The votes, therefore, have to be counted after the poll is closed and after the lists with the sealed parcels of ballot papers have been sent in. They are to be counted, not by opening the parcels and recounting each vote, but the rolls are to be first checked for double votes, and when these have been eliminated the various lists are to be added up. Section 8 simply means that the returning officer is to count the votes in the manner prescribed by the Electoral Act in taking the electoral poll under that Act. There was, therefore, no irregularity in the fact alleged in the petition that the returning officer had not himself counted the votes. The second allegation, that there were votes in favour of reduction which had not been counted at all had, however, to be dealt with by the magistrate, and if he had jurisdiction to hear the petition, it was his duty to inquire into the truth of this allegation. It is contended, on behalf of the plaintiff, that because the inquiry was not commenced within 14 days after the petition was filed, and because seven days' public notice was not given of the time of holding the inquiry, as required by section 49 of "The Regulation of Local Elections Act, 1876," that the magistrate had no jurisdition. It was further contended that if he had jurisdiction, and it was found that the allegation was proved that votes had not been counted which, when counted, altered the result of the poll, the only course the magistrate could take would be to declare the poll void. The jurisdiction is given to the magistrate by section 7, subsection of the Act of 1895. That section is as follows:—" If the result of any licensing poll is disputed, any 50 electors may require an inquiry to be held in manner provided by section 48 and the subsequent sections of 'The Regulation of Local Elections Act, 1876,' and the matter in dispute shall be determined in the same manner, mutatis mutandis, as if the said poll were an electoral poll." The Act of 1876 is an Act regulating the election of members of local elective bodies. Section 48 provides that after any election any candidate and page 45 two electors, or any six electors, may make a declaration that they believe the election was void upon the grounds set forth, and may petition for an inquiry. This declaration and petition are to be filed in the Resident Magistrate's Court. The section then goes on to provide that the resident magistrate of such court "shall hold an inquiry as to the matter alleged in such petition, and upon due hearing of the case may declare such election or the election of any candidate thereat to be void, and may declare any other candidate to be duly elected, subject to the following conditions." Then comes section 49, in these words: "Such inquiry shall be commenced within 14 days after such petition is filed, and the resident magistrate shall give not less than seven days' public notice of the time of holding the same." It was contended, on the authority of the Queen v. the Justices of London (93, 2 Q.B., 476), that, although the provisions of section 49 might be mandatory on the magistrate, still, that the magistrate remained clothed with authority to do justice in the matter, as, if he could not do justice, it would not be done at all. If section 49 had been detached from section 48, and the words "subject to the following conditions" in section 48 had been omitted, the above case might perhaps have applied. The magistrate would have had a general authority given him by section 48, and that authority might remain if, through accident or his own default, the provisions of section 49 were not complied with. By the insertion of these words, however, the Legislature has used language which expressly makes the commencement of the inquiry within 14 days and the seven days' notice by the magistrate conditions precedent to the exercise of any jurisdiction by the magistrate. The law is thus stated in "Maxwell on Statutes," page 543: "Where the act or thing required by the statute is a condition precedent to the exercise of the jurisdiction of the tribunal, compliance cannot be dispensed with; and if it be impossible, the jurisdiction fails." If the Legislature in plain words gives a jurisdiction, subject to specified conditions, to a person who otherwise would have no jurisdiction, I do not see how any jurisdiction can exist unless the conditions are complied with, or how the conditions can be dispensed with. Where the language is clear no argument from inconvenience can prevail. Nor can it be said that such an absurdity results from the literal construction that this court must read section 48 as if the words "subject to the following conditions" had been omitted. The intention of the Legislature, to be gathered from the language of the statute, is that the inquiry should be commenced very shortly after the election, and that a specified notice should be given of the inquiry. The Legislature may well have considered these matters to be of supreme importance, and that it would be better that no inquiry should be held at all than that the hearing should be delayed from any cause whatever, even although the delay and the omission to give the notice may have been the result of pure accident. I see no sufficient reason to conclude that the page 46 Legislature did not mean what it has plainly said. As, therefore, the inquiry was not commenced wthin the time limited, and the prescribed notice was not given, I think the magistrate had no jurisdiction, and that the writ of prohibition must go. As, however, the matter was discussed at the hearing, I will proceed to consider what, if the magistrate had jurisdiction, he ought to have done with respect to the second allegation, that there were votes in favour of reduction which had not been counted. Certainly it would have been his duty to inquire into the truth of the allegation, and to ascertain by counting the votes whether the allegation was proved. Then the question arises: Can the magistrate, if he finds a majority of votes in favour of reduction, give effect to the result, and alter the return by declaring the proposition carried, or is the poll void? By section 7, subsection o, of the Act of 1895, the inquiry is to be held in the manner provided by section 48 and the subsequent sections of the Act of 1876. Section 51 provides that no inquiry shall be made as to any election, except as to the truth of any of the allegations set forth in the foregoing section 50. Section 50 provides that if, on any such inquiry, it appears that certain things there specified have happened, the whole election shall be void. If it appears that certain other specified things have happened, the election of a candidate is to be void, and the candidate next highest on the poll is to be declared elected. If it appears that a person voted who was not entitled to vote, or gave more votes than he was entitled to give, these votes are to be struck off, and the candidate then having the highest number of votes is to be declared elected. The allegation that the returning officer has omitted to count the votes is not precisely set forth in section 50. It comes, however, under paragraph 6 of that section, "that any other irregularity occurred in the proceedings which, in the opinion of the resident magistrate, tended to defeat the fairness of the election, If such an allegation is proved, section 50 provides that the whole election shall be void. If, therefore, at a local election a rejected candidate alleges and proves that the returning officer has omitted to count votes given in his favour, and that with these votes he would have a majority, the magistrate cannot declare him elected, but the whole election is void. The provision is a curious one, and so is the provision that if a candidate is proved to have obtained a single vote by bribery the election is not to be declared void, but the other candidate is to be declared elected, however small the number of votes he may have polled. Why the Act of 1876 was thus framed it is impossible to discover; but so it is. The inquiry here is to be held in the manner provided by section 48 and the subsequent sections of that Act. Sections 50 and 51 are certainly subsequent sections, and they regulate the procedure on such an inquiry. At a local election poll persons are voted for; at a licensing poll propositions. If section 48 and the subsequent sections be applied by substituting propositions for persons, and making the necessary adjustments, then, as votes omitted to be page 47 counted in favour of a person would render the election void, so votes omitted to be counted in favour of a proposition would have the same effect. The result is odd, but not more odd in one case than in the other. It was said that, although by section 7, subsection o, the inquiry was to be held in the manner provided by the above section, yet by that subsection the matter in dispute was to be determined in the same manner, mutatis mutandis, as if the poll were an electoral poll. It was contended that this meant that the magistrate, in deciding, was not to be governed by the Act of 1876, but by the Elections Petitions Act of 1880 and the general law relating to elections. That is, that the magistrate, in deciding, was not to exercise jurisdiction under the Act of 1876, but was to decide, mutatis mutandis, as if he were an election court, constituted under "The Elections Petitions Act, 1880," trying a petition against the return of a member of the General Assembly. I do not think the section will bear this construction. The words "an electoral poll," following on the direction that the inquiry is to be held in manner provided by "The Regulations of Local Elections Act, 1876," refer to an electoral poll held under that Act. To enact that an inquiry should be held under one set of sections, and that the decision should be given on principles altogether inconsistent with those expressed in the sections under which the inquiry is to be held, would be an absurdity. The difficulty arises from the fact that if the poll under the Licensing Act is void, there is no provision for another poll being taken; while, if the election of candidates is declared void under the Act of 1876, a fresh election can be had. But that there was an omission on the part of the Legislature to provide for the contingency of a licensing poll being declared void is plain from any point of view. If the magistrate were not governed by the Act of 1876, but had to decide as if he were an election court under the Act of 1880, trying a petition against the return of a member of the General Assembly, there are many cases where, under the general law of elections, he might have to declare the poll void. If he did so, the Legislature has made no provision for the poll being retaken. I think, therefore, that if the magistrate had had jurisdiction, and had found that there were votes in favour of reduction which had not been counted, he could not have given effect to the result; but that, under section 50 of the Act of 1876, the whole poll would have been void. There will be a writ of prohibition, as prayed.

Mr Adams observed that in the judgment his Honor had stated that there was no ground for the allegation in the petition that the returning officer should personally count the votes. That allegation was not in the petition, but in the magistrate's judgment, and was not raised on behalf of the petitioners at the hearing.