Scottish Court of Session Decisions

In 1881 there were seven councillors of the royal burgh of Haddington who retired or fell to go out of office, and various parties offered themselves as candidates for the vacancies. As the number of persons proposed for election as councillors exceeded the number of vacancies, a poll was fixed to take place within the Town Hall of Haddington on Tuesday, November 1, 1881, between the hours of eight in the morning and four in the afternoon. An election accordingly took place on the above date, at which William M'Kay, one of the bailies of the burgh, acted both as presiding and returning officer, under and in terms of sections 20 and 21 of the Ballot Act of 1872.

By section 2 of this Act it is provided that in case of a poll the vote shall be given by ballot, the ballot-papers being to be marked on both sides at the time of voting with an official mark, and then used as prescribed—“Each ballot-paper shall have a number printed on the back, and shall have attached a counterfoil, with the same

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number printed on the face. At the time of voting the ballot-paper shall be marked on both sides with an official mark, and shall be delivered to the voter within the polling station,… and 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.”

By rule 24 of the appendix annexed to the Ballot Act 1872 it is provided that “Immediately before a ballot-paper is delivered to an elector it shall be marked on both sides with the official mark, either stamped or perforated, and the number, name, and description of the elector, as stated in the copy of the register, shall be called out, and the number of such elector shall be marked on the counterfoil, and a mark shall be placed in the register against the number of the elector to denote that he has received a ballot-paper, but without showing the particular ballot-paper which he has received.”

By rule 26 of the said appendix it is provided that “The presiding officer, on the application of any voter who is incapacitated by blindness or other physical cause from voting in manner prescribed by this Act, or (if the poll he taken on Saturday) of any voter who declares that he is of the Jewish persuasion, and objects on religious grounds to vote in manner prescribed by this Act, or of any voter who makes such a declaration, as hereinafter mentioned, that he is unable to read, shall, in the presence of the agents of the candidates, cause the vote of such voter to be marked on a ballot-paper in manner directed by such voter, and the ballot-paper to be placed in the ballot-box, and the name and number on the register of voters of every voter whose vote is marked in pursuance of this rule, and the reason why it is so marked shall be entered on a list in this Act called ‘the list of votes marked by the presiding officer.’ The said declaration in this Act referred to as ‘the declaration of inability to read’ shall be made by the voter at the time of polling before the presiding officer, who shall attest it in the form hereinafter mentioned, and no fee stamp or other payment shall be charged in respect of such declaration, and the said declaration shall be given to the presiding officer at the time of voting.”

By rule 29 of the said appendix it is provided that “The presiding officer of each station, as soon as practicable after the close of the poll, shall, in the presence of the agents of the candidates, make up into separate packets, sealed with his own seal and the seals of such agents of the candidates as desire to affix their seals (1) each ballot-box in use at his station unopened, but with the key attached; and (2) the unused and spoiled ballot-papers placed together; and (3) the tendered ballot-papers; and (4) the marked copies of the register of voters and the counterfoils of the ballot-papers; and (5) the tendered votes list and the list of votes marked by the presiding officer, and a statement of the number of the voters whose votes are so marked by the presiding officer, under the heads ‘physical incapacity,’ ‘Jews,’ and ‘unable to read,’ and the declarations of inability to read.”

By rule 30 of the said appendix it is provided that “The packets shall be accompanied by a statement made by such presiding officer, showing the number of ballot-papers entrusted to him, and accounting for them under the heads of ballot-papers in the ballot-box unused, spoiled, and tendered ballot-papers, which statement is in this Act referred to as the ballot-paper account;” and by rule 31 of the said appendix it is provided that “the candidates may respectively appoint agents to attend the counting of the votes.”

By rule 34 of the said appendix it is provided that—“Before the returning-officer proceeds to count the votes he shall, in the presence of the agents of the candidates, open each ballot-box, and, taking out the papers therein, shall count and reckon the number thereof, and then mix together the whole of the ballot-papers contained in the ballot-boxes. The returning-officer, while counting and recording the number of ballot-papers, and counting the votes, shall keep the ballot-papers with their faces upwards, and take all proper precautions for preventing any person from seeing the numbers printed on the backs of such papers.” And by rule 37 it is provided that “Upon the completion of the counting, the returning-officer shall seal up in separate packets the counted and rejected ballot-papers. He shall not open the sealed packet of tendered ballot-papers or marked copy of the register of voters and counterfoils, but shall proceed, in the presence of the agents of the candidates, to verify the ballot-paper account given by each presiding officer, by comparing it with the number of ballot-papers recorded by him as aforesaid, and the unused and spoilt ballot-papers in his possession and the tendered votes list, and shall reseal each sealed packet after examination. The returning-officer shall report to the Clerk of the Crown in Chancery the result of such verification, and shall, on request, allow any agents of the candidates, before such report is sent, to copy it.”

During the polling on 1st November 1881 various irregularities were alleged to have been committed by the presiding and returning-officer, Bailie M'Kay, while the precautions required by the Act to prevent voters from being identified were said to have been neglected. Upon proof it turned out that as regarded 153 voting-papers the number of the voter in the register was marked by him or his assistants upon the face of the ballot-paper. This went on from eight o'clock until four, when a voter coming in objected to take a paper so marked; thereupon the irregularity ceased, and the remainder of the votes were given without any marking of an objectionable kind upon the voting-paper. After the closing of the poll there appeared to have been a very plain violation of the rules laid down for the conduct of elections, which irregularities are fully detailed, and the objections urged against them dealt with, in the opinion of the Lord Ordinary.

The pursuers were duly qualified electors of the burgh of Haddington, who were at the date of the election eligible for the office of councillors, and the purpose of the present action of reduction was to set aside the election in toto on the ground that the whole procedure on the occasion in question was in violation of the principles of the Ballot Act.

Against this it was maintained by the defenders that although certain irregularities had occurred,

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yet the election had been substantially conducted according to the principles of the Ballot Act.

On the 4th of March 1882 the Lord Ordinary pronounced an interlocutor assoilzieing the defenders (who were the elected Provost, Magistrates, and Councillors of the burgh of Haddington) from the whole conclusions of the action. His Lordship added this note:—…. “I think, in reference to the common law, that the rule laid down by the Judges in the case of Woodward v. Sarsons very well expresses the principle of the common law of Scotland, which in these matters is in no way different from that of England. An election is liable to be set aside by reduction, either where there has been no election in the eye of the law by the constituency, or where, though there has been an election, it has not been an election conducted in accordance with the requirements of the existing law. As an illustration of the first case, one might suppose an election by the town-council itself, or if that is too improbable an occurrence to be useful as an illustration, then what occurred in the Hackney case may be taken as a fair illustration, where a whole ward, owing to some want of arrangement, had been disabled from giving its votes, and thus the election is made by a constituency of a narrower area than the area appointed by the law of the land, where, instead of the whole burgh making the election, it is only so many wards, something less than the whole area of the burgh. That would be an election by a different constituency than the one entrusted by the law with the duty of making it. As regards election in a manner different from what the subsisting law authorises, this objection would apply if the election were conducted by open voting, but obviously a much smaller deviation from the principles of the existing law would be sufficient to render the proceedings invalid. Take, for example, the case suggested by the Lord President in one of the authorities quoted—that all the ballot-papers were found to be deficient in the official mark, or if every ballot-paper had the registered number endorsed upon it, as was done with a certain number of the papers in this case, so that not as matter of occasional inattention, but as part of the system on which the whole election was conducted, there was a material and substantial deviation from the requirements of the statute. What is said in the present case is that, having regard to the provisions of the 13th section of the Ballot Act, there have been in this election deviations from the principles laid down in the body of the statute. The clause in question distinguishes between the rules for conducting elections which are contained in the schedule appended to the statute, and the principles of the existing election law as laid down in the body of the Act. It is given as a direction to any Court before whom such a question may come that an election shall not be voided merely because there have been deviations from the rules not inferring any departure from the principles of the statute, and it is inferred from this direction that wherever there has been a departure from the principles laid down in the body of the Act—I am using the words of the 13th section—such informalities, whether intentional or unintentional, shall infer nullity of the election. Again, if the irregularities, whatever these may be, are such as to affect the result of the election, this, according to the 13th section, would also be a reason for declaring the election void. The present case furnishes a very good illustration of what might have been the consequence of an irregularity of that kind—I refer to the 153 votes, which it appears are invalid in consequence of the registered number of the voter having by inadvertence been put upon the ballot-paper as well as upon the counterfoil. These votes would necessarily be disallowed on a scrutiny, because they are marked in such a way as to enable the voter to be identified. But according to the statute, in a question as to the validity of the election, I am to consider whether the rejection of that number of votes would affect the result of the election. Well, upon the analysis of the votes in the rejected list it appears that even if all these votes were disallowed on a scrutiny the same gentlemen would have to be declared duly elected who were declared duly elected by Mr Mackay at the declaration of the poll. Therefore the result of the election is not affected either by the admission or the rejection of these votes, and so I think I am relieved from all difficulty with regard to the second branch or condition of the 13th section of the statute. What I am now to consider is, whether these irregularities involve a departure from the principle of secret voting as laid down in the body of the Ballot Act. Now, the Ballot Act itself nowhere contains in express terms a declaration of what these principles are. They have to be collected by reading its various clauses, and by considering their results when put into operation. Of course the first principle is that the voting is to be secret, and when you read the clause you see that it is implied not only that the vote is to be secret for the moment, but that the poll is to be taken in such a way that the votes cannot be ascertained from anything done either before or during or after the election. If it were permissible for the voter to deposit in the ballot-box any paper that he brought with him to the polling station, then his vote might be identified by some pre-arrangement, as happens, we know, in other countries, where men come in with red or green tickets denoting the party for whom they vote, and in the presence of the agents in the polling place deposit their coloured tickets in the ballot-box. Anything of that kind would be utterly opposed to the principles of British legislation. If by the connivance of the presiding officer a voter were to be allowed to expose his paper so that it could be seen while the polling was going on, that I should regard as being equally opposed to the principle of the ballot. Then if the votes as a whole are taken in such a way that they may be found out afterwards, there again you have a violation of the provisions intended for securing secrecy. Another principle of the Act, as I take it to be, is that while secrecy is ensured as regards the public, yet means are provided through the correspondence of numbers for identifying the voter in case it should be necessary to do so in a judicial inquiry, and that again is one of the two leading principles of the Act—secrecy as regards the public, but opportunity of disclosure for the purpose of the prevention and punishment of fraud. These principles are to be observed in conducting an election. I do not know any other principles fundamental to the operation of the Ballot Act,

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and we wish to see now whether there has been an infringement of these principles which I have attempted to summarise.

“Now, the objections may be divided into two classes. There is the irregularity as to the numbering of the papers, and the irregularities with reference to the disposal of the papers from the time the poll was closed until they were finally sealed up and placed in the custody of the town-clerk. In regard to the numbering of the papers, if the question had come before me for the first time, I should have felt it to be one of very great difficulty, because, prima facie, the putting a number on a ballot-paper, and thereby—although it may be quite unintentional—enabling the agents and enumerators through whose hands that paper has to pass to identify the voter is, prima facie, an infringement of the principles of the Act. But the case was very fully considered by a Court of the highest authority—the Court of Common Pleas—in the Birmingham Town Council case, and their Lordships, while refraining from expressing an opinion as to what might be the result if these numbers had been written on the papers throughout were of opinion that as the irregularity had been unintentional, and confined to a small number of votes, this was not a violation of the principles of the Act, but an accidental deviation from the rules, which was not to cause a voidance of the election unless the rejection of these votes would have the effect of returning a different set of candidates. In a question of election law this decision of the Court of Common Pleas is one of the highest authority, and which, even if it differed from my own opinion, I should certainly have followed. But I do not say that I differ from it all. This question is one of difficulty, and it seems to me their Lordships came to a sound result because, if they had taken a different course it would have followed that if by accident a register number were placed on one single ballot-paper the election would be rendered entirely void. I cannot think it was the intention of the Legislature that in the execution of an Act of Parliament which is excessively complicated, and which contains perhaps fifty different positive requirements, the omission in the ease of a small number of votes of some of these requirements should have the effect of depriving a constituency of its representative, or, in the case of a municipal burgh, of setting aside the whole election.

On the other branch of the case—the irregularities that occurred in dealing with the papers—I shall take them separately. First, it is objected that there was no ballot-paper account made up at the end of the poll, but that the votes and counterfoils were locked up and sealed in the ballot-box, the other papers being left on the table, but with this precaution, that the presiding officer locked the door and kept the key until the room was opened again for the purpose of enumeration. Now, I think it would have been more correct if the ballot-paper account had been taken at the close of the poll, and the whole papers had been enclosed in envelopes and sealed. But it is only fair to observe, with reference to the duty of the presiding officer in a burgh like Haddington not divided into wards, that the rule applicable to that subject which is contained in the schedule annexed to the statute (rule 29) is one that refers to constituencies divided into wards. The rule directs the presiding officers at their respective wards to seal up the different papers in separate packets, and to deliver them to the returning-officer as preparatory to an enumeration of votes. In the clause making the statute applicable to municipal elections there is no correction of rule 29, no modification of its terms so as to adapt it to the case where there is only one polling place and one presiding officer, who in such a case is generally also the returning-officer. Now, therefore, in this case the provisions of rule 29 could not have been literally complied with, because you have not two persons, or, rather, you have not one series of persons who are to make up separate packets and deliver them to another person. I think it would have been quite in accordance with the spirit of the clause if Bailie Mackay at the close of the poll had made out a ballot-paper account and sealed up the various packets. But then, although he did not do so, if he locked the room in which these papers were contained, and after the adjournment proceeded in the course of the evening to make up a ballot-paper account, making it out just in the way that he must have done if he had done it at the close of the poll—that is, by comparing the number of counterfoils, as indicated by the last running number, with the number of the used and spoiled ballot-papers (which were the complement of the counterfoils)—I say there was here a deviation from the precise requirements of the statute, but there is, I think, no deviation from the principle laid down in it, the principle of comparison of the voting-papers with the counterfoils, and comparison under circumstances which did not admit of disclosure of the vote. But it is said, further, that the counterfoils were left exposed on the table during the counting. Well, that again was an error. They ought to have been sealed up before the counting commenced. But the pursuers go on after to say that because these books of counterfoils were lying on the table they must be held to be open to inspection. The counterfoils are bound up in little books, and their contents could not be inspected unless someone had taken them in his hand and turned over the leaves. There is no evidence that that was done. The only occasion was when one of the gentlemen present looked for the last running number to enable the ballot-paper account to be taken, when he turned over the leaves for that purpose, and I am satisfied for no other purpose. Therefore, though the counterfoils were lying on the table they were not inspected, and were not placed there for being inspected, by anyone in the room, and that is not an irregularity involving a departure from secrecy or the mode in which that secrecy is to be preserved as contained in the body of the statute.

The next objection is that the papers, other than the used ballot-papers and the used counterfoils, were in the course of the enumeration removed from the table and placed on a shelf or the window-sill until after the enumeration was over. The reason for their being removed from the table is quite obvious; the table was wanted for the purposes of enumeration, and had to be cleared. Whether the papers were on the shelf or the window-sill is immaterial, and though they lay there too long, it is not said they were disturbed that evening. There is no requirement in the body of the Act, or in the schedule, that

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at the completion of the returning-officer's duty the final making up of the different papers into packets shall be done immediately after the enumeration. Substantially I think the statute was complied with when the draft ballot-paper account was made out in the evening and extended the next day. I have every reason to believe that the Parliamentary paper—the formal return—is constantly left over till the day following the election—very often because the operation of enumeration occupies the gentlemen engaged in it to such a late hour that it would not be reasonable to expect that this requirement should be instantly complied with. No one, so far as I am aware, has ever taken an objection that these formal, though important, duties of the returning-officer were occasionally left over till the following day.

Then, lastly, there is an objection to the mode in which the papers were dealt with after the close of the election. Now, I must say, that there was very great carelessness displayed in the way in which these papers were treated. The direction of the statute is that they shall be kept by the town-clerk with the records of the burgh, and I think they ought certainly to be kept under lock and key, and not left lying open in a room to which the public were in the habit of resorting when they came on municipal business. I do not say there was anything wrong in what was done, but it is calculated to excite suspicion, and anything exciting suspicion in the minds of the public should be avoided by an official. It is the principle of the Ballot Act that once the election is over the papers are to be sealed up, and that no one has power to break these seals unless under the authority of Parliament or of the Court. Worse still, it is said these packets were opened up and resealed after an interval, for a reason we do not know. Mr Hood has not come here to give the reason for the course he took, and we are not here to inquire into his conduct, and I do not say anything upon it except that I do not think that anything done by the custodier of these public documents after the election was declared can have the effect of depriving the defenders of their position as town councillors of Haddington.

I think I have now gone over all the specific points except the one about counting the ballot-papers. Certain ballot-papers were placed with their backs upwards, when they ought to have been turned with their faces upwards. That was not an irregularity for which it is possible to make any particular person responsible. It seems to have been the idea of everyone present that that was the proper way of counting, and accordingly all the enumerators had placed their papers with the backs upwards except one. Someone called attention to the peculiarity in this case, and a gentleman present turned them round to make them like the rest. When this happened they were all arranged; but no doubt the schedule appended to the statute prescribes the precise mode in which the ballot-papers are to be placed, as it prescribes other particulars. I cannot say why it prescribes it, except in so far as regularity is important in public business—I mean it is of no importance as to secrecy or the result of the election. Many of these rules, I believe, were laid down merely because it was thought better to have a rule in case some nervous person did not know how his paper should be turned, and which was the right side to have uppermost. Therefore he was told that which he was to do, so that he might be relieved of perplexity. The best proof of this is that at the second counting it is open for the gentlemen to look both sides, and it is constantly done, for the purpose of seeing that no identifying mark has been put on one side or the other.

I do not think it necessary to go further into the cases that have been cited. I have referred to the Birmingham, case, and in regard to the Hackney case that is an illustration of an election set aside because a section of the constituency had been accidentally disfranchised, and Mr Justice Grove's observations as to anything having a tendency to reduce the majority so far—if they bear the construction put upon them by the pursuers' counsel—appear not to be consistent with the more recent and authoritative case of Woodward, where the Court did what I have done—ascertained not whether the number would be diminished, but whether the result of a scrutiny would alter the persons to be elected. The cases in our own Courts appear to me to be generally in harmony with the principles here laid down. I have endeavonred to follow them and keep them in view in dealing with these different points. I have carefully considered the judgment of Lord Gifford, a Judge of great eminence and ability, and to whose opinion in all matters involving public interests I should be disposed to defer. Lord Gifford interprets the 13th section of the Ballot Act as directing and even requiring an election Judge to disregard all apparently formal deviations from the requirements of the statute, whether contained only in the schedule, or both in the schedule and in the body of the Act, if they are not matters involving principle or matters affecting the result of the election.

My opinion, therefore, on the whole case is, that while this election is certainly not an example to be followed, but rather one which, through the medium of this case, may enable the town council to avoid similar errors in future, yet there has been no such error as would set aside the election or deprive any of the gentlemen elected of his position as a town councillor. I therefore grant decree of absolvitor, with expenses.”

The pursuers reclaimed, and argued—All the rules of the Ballot Act were systematically neglected. Many parties may have been deterred from recording their votes through fear of discovery, while others may have voted, under the stress of open voting; the election ought to be set aside in toto.

Authorities referred to— Hamilton v. Dunoon Police Commissioners, January 15, 1875, 2 R. 299; Thomson v. Magistrates of Rutherglen, February 17, 1876, 3 R. 451; Macfarlane v. Mochrum School Board, November 9, 1875, 3 R. 88; Woodward v. Sarsons, July 9, 1875, 10 Com. PI. 733; Gill v. Sir C. Reed ( Burgh of Hackney case), 2 O'Mally & Hardcastle, Elect. Rep. p. 77, also 39 L. Times, 69; 16 Vict. cap. 26, sec.1; 35 and 36 Vict. c. 33, sec. 13, rules 24, 29, 30, 34, and 37.

The respondents argued—The election had been conducted substantially in accordance with the principles laid down in the Ballot Act of 1872. There is nothing in sec. 2 of the Act to

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distinguish between faults committed by the officials and those committed by the voter. When irregularities occur the penalty is not voiding the election, but setting aside the vote. By sec. 20 of the Act the rules do not apply to municipal but only to Parliamentary elections.

Authorities referred to— Burgh of Horsham, 1 Fowler & Rodwell, Elect. Cases, 248; Mortimer case, Robertson's Appeals, 852; Anstruther v. Alexander, 1767, M. 12, 672; Maxwell's Interpretation of Statutes, p. 327; 3 and 4 Will. IV. c. 76, sec. 7; 33 and 34 Vict. c. 92, sec. 5; 35 and 36 Vict. c. 33, rules 28, 29, and 30.

At advising—