(a) This section is similar to rule 22 in the First Schedule to the English Ballot Act of 1872. (35 & 36 Vic. ch. 33.)

(b) Where voting by ballot prevails, it is generally provided that the ballots shall be in such form as not to be outwardly distinguishable from each other. But where a Statute provided that no ballot should be counted unless the same were written or printed on white paper without any marks or figures thereon intended to distinguish one ballot from another, ballots upon paper tinged with blue, which had ruled lines thereon (not however as distinguishing marks) were held to be legal ballots. People v. Kilduff, 15 Ill. 492. But ballots having an eagle printed thereon were held to be in violation of the act, and were rejected. Commonwealth v. Woelper, 3 S. & R. Penn. 29.

(c) The ballot paper must contain the names of those candidates, only who have been duly nominated by nomination papers in the form Schedule F. Any votes given at the election for any other candidates than those so nominated, are null and void. The nomination paper must be delivered to the Returning Officer, with, (1) The consent in writing of the candidate, unless he be absent from the Province in which the election is to be held; (2) The affidavit of the witness or witnesses to the signatures and qualification of the nominating electors, and to the signature of the consenting candidate; and, (3) A deposit of $50 towards the expenses. But the deposit is not a condition precedent by the English Act. Davies v. Lord Kensington, L. R. 9 C. P. 720, (ss. 19 and 21.) Any candidate may withdraw after his nomination and before the closing of the poll, by filing with the Returning Officer a declaration in writing to that effect, signed by himself; and any votes cast for such candidate so withdrawing, shall be null and void. (sec. 25.) See also South Renfrew Election, 11 C. L. J. 47.

(d) A candidate at an election was nominated by two nomination papers, each giving different localities for the residence of such candidate; one of the nomination papers was good, the other being defective, was admitted to be bad. The name of the candidate appeared twice as No. 5 and No. 6 on the ballot paper, according to the separate description in each nomination paper; seventy-one ballots were marked for him under the description given in the defective nomination; 301 under the valid nomination, and eight had crosses opposite each place where his name appeared: Held, that the mistake of entering the candidate’s name twice, neither deceived nor misled any voter in voting for the wrong person, and did not therefore affect the result of the election, and that all the ballots marked for him should be counted. Held, further, that inasmuch as the ballot paper is to contain a list of the candidates and not a list of their nominations, that the Returning Officer should have entered his name once. Northcote v. Pulsford, L. R. 10 C. P. 476; S. C. 44 L. J. C. P. 217. A ballot which contains the name of the candidate voted for two or more times is to be counted as one vote; it is not to be looked upon as two or more ballot tickets folded together. People v. Holden, 28 Cal. 123; Brightley on Elections, 480: When there is a doubt as to the person intended to be voted for, by reason of a misspelling of the surname, or of the addition of a different or erroneous surname, facts and circumstances of public notoriety, dehors the ballot, connected with the election and the different candidates, are competent evidence to ascertain for whom the ballots were intended to be cast. Carpenter v. Ely, 4 Wis. 420. The weight of authority in the United States, though there are some conflicting decisions, is in favor of the rule that, where a candidate is voted for by the initials only of his Christian name, parol evidence is admissible to apply the ballot to the candidate for whom it was intended. Brightley on Elections, 267. But in England it was held a fatal misnomer to represent the candidate’s Christian name by its initial. Mather v. Brown, 34 L. T. N. S. 869. Voting papers inscribed Wm. Bradley and Willm. Bradley, were held to be admissible as votes for William Bradley. Regina v. Bradley, 3 E. & E. 634.

(e) The English Ballot Act provides (sec. 28) that, “The Schedules to this Act and the notes thereto, and directions therein, shall be construed and have effect as part of this Act,” and in the Schedule it is noted, “The forms contained in this Schedule, or forms as nearly resembling the same as circumstances will admit, shall be used in all cases to which they refer, and are applicable, and when so used, shall be sufficient in law.” In construing the provisions of that Act, it was held that the sections in the body of the Act are absolute enactments which must be obeyed or fulfilled exactly, whilst the rules and forms in the Schedules are only directory enactments; and that it is sufficient if the directory enactments are obeyed or fulfilled substantially. Woodward v. Sarsons, L. R. 10 C. P. 733; S. C. 44 L. J. C. P. 293.

(f) The initials of the Deputy Returning Officer on the back, and the number on the counterfoil are for the purpose of identification, and the absence of the initials of the Deputy Returning Officer will not render the ballot invalid. If therefore any ballot papers, without the initials, have been counted by the Deputy Returning Officer, the Judge on a re-count of the votes, would hold such ballots to be prima facie valid. So far as the public interests and the electors are concerned, this clause may be looked upon as directory, and its non-observance will not invalidate the votes. See Rex v. Norwich, 1 B. & Ad. 310; Nickle v. Douglas, 35 Q. B. 127. But so far as it affects the Officer, whose duty it is made to do the act, the clause may be construed as imperative. Hunt v. Hibbs, 5 H. & N. 126.

(g) The section of the Act of 1874, for which this is substituted, provided that the elector should mark his ballot paper by making a cross on the right hand side opposite the name of the candidate for whom he intended to vote. This provision was held to be imperative as to (1) the mark being a cross ×, and (2) that it should be on the right hand side of the name. Monck Election, 12 C. L. J. 114. The effect of the alteration in the Act is to make valid hereafter all ballots marked with a cross, thus ×, “on any part of the ballot paper within the division containing the name of the candidate.” See also North Victoria Election, 11 C. L. J. 163.

(h) The marking of ballots, so as to indicate whether the voter has legally voted, and for which candidate, has given rise to much discussion and litigation. The English Act in the enacting clause (sec. 2) provides that the voter shall secretly mark his vote on the paper; in the schedule of rules (No. 25) that the elector shall mark his ballot paper, and in the schedule of forms it prescribes that the voter shall place a cross on the right hand side opposite the name of the candidate for whom he votes, thus: × Under that Act it was held by the Irish Court of Common Pleas in the Athlone Case, 1874, without deciding as to a cross on the left hand side of the ballot paper, that a ballot paper with a cross on the right hand side, and within the compartment containing the candidate’s name, was valid and should be counted. Athlone Election, 2 O’M. & H. 197. In the Wigtown Case (1874) the Scotch Court of Session (Lord Benholme dissentiente) held that a ballot paper with a cross above or below the name towards the right hand side of the name was valid and should be counted. Wigtown Election, 2 O’M. & H. But in 1875 the English Court of Common Pleas, reviewing the previous cases and drawing a distinction between the enacting words of the statute “secretly mark his ballot,” and the directions in the schedule of forms “place a cross on the right hand side opposite the name of the candidate,” held that a ballot paper with a cross, a star, a single line, or any other mark which would show that the voter really intended to vote, was valid and should be counted. The Court held that the following ballots were valid, and should be counted: (1) Ballots marked with two crosses; (2) Ballots with a cross of a peculiar form; (3) Ballots with an extra mark and a cross; (4) Ballots with a cross to the left hand side of the name; and that such ballots were valid unless there was evidence of an arrangement that such peculiar marks were to be indications of identity; (5) Ballots with a single or double line. The following ballots were rejected: (1) Ballots with the voter’s signature; (2) Ballots with the name of the candidate or initials in writing, as giving facilities by a comparison of handwriting to identify the voter. Woodward & Sarsons L. R. 10 C. P. 733. In the Monck Case in 1876 the following marks on ballots were held good: (1) An irregular mark in the nature of a cross, so long as it did not lose the form of a cross; (2) A cross not in the proper compartment of the ballot paper, and either over on or under the candidate’s name, but to the right hand side of the centre of the ballot paper; (3) A cross with a line before it apparently inadvertently made; (4) A cross rightly placed opposite one of the candidate’s names, but with two additional crosses one across the other candidate’s name, and the other to the left; (5) A double cross, or two crosses, in the right place; (6) A cross in the right place, but on the back of the ballot paper; (7) Ballot papers inadvertently torn; (8) A cross in the right place, but with other marks on the ballot paper apparently made inadvertently; (9) Ballots with the cross in the proper place, but marked by a pen and ink instead of a pencil. Monck Election, 12 C. L. J. 114. This decision is now varied by the above amendment, so that a cross to the left of the candidate’s name is valid. See the Appendix.

(i) “Making a cross.” In these words consist the substantial difference between the English and the Canadian systems of marking ballots. Under this Act the mark must be a cross, or “an irregular mark in the nature of a cross, so long as it did not lose the form of a cross.” The cross may be to the right or left, above or below, or on, the name or the numerals, and if on any place within the division, or clearly intended to be within the division, “so as to show that the voter intended to vote for some one, and so as to show for which of the candidates he intended to vote, the ballot will be good and should be counted. The ballot must not be marked so as to show that he intended to vote for more candidates than he is entitled to vote for, nor so as to leave it uncertain whether he intended to vote at all, or which candidate he intended to vote for; nor so as to make it possible, by seeing the paper itself, or by reference to any other available facts to identify the way in which he has voted. If these requirements are substantially fulfilled, there is no enactment or rule of law by which a ballot paper can be treated as void; and if the requirements are not substantially fulfilled, the ballot paper is void and should not be counted.” Per Lord Coleridge, C. J., Woodward v. Sarsons. L. R. 10 C. P. 733; S. C. 44 L. J. C. P. 293; S. C. 32 L. T. N. S. 867. “There are ballot papers in which a cross is made or attempted to be made, but is not very well made; whether from unsteadiness of hand or accidental disturbance, the cross lines are not clear or steady, but somewhat shaky and irregular. I am of opinion that such imperfections and defects are not fatal, and that it would be hard and unjust to disfranchise a voter for such appearances. Neither am I inclined to punish with disfranchisement one voter here who has made a very respectable cross, but who has thought that it might not be the worse for small feet and claws to support it and make it like a printed capital, X. That seems to me to be an innocent idea, and, at any rate, not a sufficiently serious or suspicious addition to make his vote bad. I don’t know whether this voter may not have been reading Johnson’s Dictionary, and referring to a word which he is very fond of using—the word ‘decussate,’—which he explains as meaning ‘to intersect at an acute angle,’ and he quotes some passages which show that decussating is used by lines, having the form of the letter X, decussating one another longways. Now this voter has decussated these lines, and in doing so has made very small feet or resting places for them. I would not advise that system to be carried too far; but where it is done as appears here, I would not hold that it operates a disfranchisement of the voter.” Per Lord Neaves, Wigtown Election, 2 O’M. & H. 221.

(j) “Making a cross with a pencil.” These words are copied from the Quebec Election Act (38 Vic. ch. 7, s. 170, Q.) Had they been omitted, the principle of the English decisions would have applied to ballots under the Canadian Act. The provision requiring the ballot to be marked with a pencil is not new. The “directions to voters” in the English Act (35 & 36 Vic. ch. 33), the Dominion Act of 1874 (37 Vic. ch. 9), and 1878 (41 Vic. ch. 6), the Ontario Act (R. S. O. ch. 10), so prescribed; but it now appears in the body of the enactment. Prior to this alteration in the wording of the enactment, the question had been the subject of judicial investigation in Scotland and Canada; and it was held that the use of a pencil in marking a ballot was not essential to the validity of the vote, “because the use of a pencil was not positively and directly enjoined by the statute, and because the only positive and direct enactment on the subject is to the effect merely that the returning officer shall provide each polling station with materials for the voters to mark the voting papers; but what materials, whether pencils or pens and ink, are not specified.” Per Lord Ormidale, in Wigtown Election, 2 O’M. & H. 226. “A good cross with any pencil, or with any ink not peculiar, seems unobjectionable.” Per Lord Neaves, Ibid. 223 The 28th sec. of the Dominion Elections Act of 1874, as amended in 1878, directs the returning officer (fourthly) to furnish the deputy returning officer * * with the necessary materials for voters to mark their ballot papers. See also Monck Election, 12 C. L. J. 114.

(k) When the ballot is placed in the ballot box, the act of voting is complete, and the vote cannot thereafter be questioned.

(l) A voter who shews his ballot paper when marked to any person, does not render his ballot paper invalid. The Deputy Returning Officer has no authority to reject it; but such voter renders himself liable to a penalty. Where, owing to the defective arrangements at the polling booth, it happened that each voter taking his ballot paper into a back room in order to mark the same, and returning, had to pass a landing, close to which were standing at the head of the staircase a policeman, and parties engaged in bringing up voters, all of whom could occasionally see the ballot paper as marked when the voter carried the same in his hand unfolded, but there was no evidence that any voter’s marked ballot paper had been seen, the Court held that such irregularities did not affect the election. Drogheda Election, 2 O’M. & H. 201.

(m) Where the Returning Officer placed each of the ballot papers which he had marked for voters unable to read, in the ballot box, wrapped up in the declaration of inability to read made by the voter, and each such vote could have been, but was not in fact, identified at the counting: Held, that though there was a breach of the directions by the Returning Officer, such ballots should be counted. Woodward v. Sarsons, L. R. 10 C. P. 738.

(n) A person whose name has been omitted, by inadvertence or otherwise, from the copy of the Voters’ List furnished to the Deputy Returning Officer, cannot vote. There is no provision in the Dominion Elections Act authorising the preparation or use of “Tendered Ballot papers,” such as are provided by the English Ballot Act, and the Ontario Elections Act.

(o) That is, after some person has personated him, and voted. Personation is a corrupt practice in the person personating or in the person inducing another to commit personation. Under the English Act the Returning Officer, on the declaration of any agent of a candidate that a person has committed personation, and after such person has voted, is bound to order by word of mouth the arrest of such person. No such power is given to a Deputy Returning Officer by this Act.

(p) The oath is as follows: “I solemnly swear (or if he be one of the persons permitted by law to affirm in civil cases—solemnly affirm,) that I am A. B. of (as on the Voters’ List), whose name is entered on the Voters’ List now shown to me. So help me God.”

(q) The ballot paper will be one of the ordinary ballot papers, and is to be numbered and initialed in the same manner.

(r) The effect of this section is, that the two ballot papers are to be counted. There is no means by which the first or illegal vote, when deposited in the ballot box, can be identified or got rid of, and therefore the person lawfully entitled to vote is not deprived of his franchise.

(s) Ballot papers so inadvertently dealt with and delivered up to the Deputy Returning Officer are not to be counted, but to be returned as “spoiled ballot papers.”

(t) The three classes of ballot papers to be rejected are (1) ballots which have not been supplied by the Deputy Returning Officer; (2) ballots which are marked for more candidates than are to be elected; and (3) ballots upon which there is any writing or mark by which the voter can be identified. “Trivial and unimportant deviations, s{uch as} might not unfairly be held to be incidental to the performance of the p{iece} of work in question by different individuals of different ages, habits, and conditions, ought to be disregarded, provided that the true object and intention of the voter is free from serious doubt, and that there is not sufficient ground for holding in a fair and reasonable sense that there is any mark or writing on the ballot paper, whereby the voter can be identified.” Per Lord Ormidale, Wigtown Election, 2 O’M. & H. 225. “The Act does not say any mark, or any mark deliberately made, but a writing or mark by which the voter could be identified. I think the mark must contain in itself a means of identification of the voter in order to vitiate the ballot. There must be something in the mark itself such as the initials, or some mark known as being one the voter is in the habit of using. If there be not this restriction, then it will naturally follow that every peculiarity about every cross should be scanned in order to see whether some of the additions were not put there designedly so as mark distinctively that particular ballot paper.” Per Blake, V. C., Monck Election, 12 C. L. J. 114. Where out of 182 ballot papers used at the election, 130 had not, on the back, the initials of the Deputy Returning Officer, the Court refused to reject the ballots. Ibid. Where the Returning Officer marked upon the face of the ballot paper the number of the voter as it appeared on the voters’ list, and the number so marked was not in fact seen so as to be identified, but it could have been seen at the counting of the ballots: Held, that the ballots so marked with the numbers, had marks by which the voters could be identified by reference to the voters’ list, and were therefore void and should not be counted. Woodward v. Sarsons, L. R. 10 C. P. 733.

(u) The different packages should contain:—1. The used ballot papers which have been counted. 2. The rejected ballot papers. 3. The spoiled ballot papers; and 4. The unused ballot papers.

(v) If the Deputy Returning Officer neglects or refuses to “take a note of any objection to any ballot paper,” or to number the same as directed in this section, there will be no evidence before the appellate tribunal of the “decision of such Deputy Returning Officer.”

(w) This section of the Act of 1874, is in effect, although not in words, amended by the Act of 1878, (41 Vic. ch. 6, s. 14) which gives appellate jurisdiction to a Judge to review the decision of the Deputy Returning Officers and to re-count the ballot papers, according to the rules set forth in section 55. Having completed the work of counting, the Deputy Returning Officer is to transmit all the papers to the Returning Officer with his statement of the result.

(x) Within four days after the day on which the Returning Officer makes the final addition of the votes under this section, for the purpose of declaring which candidate elected, an application may be made to a Judge for a recount of the votes.

(y) This declaration may, however, be reversed by the recount of votes before the Judge under 41 Vic. ch. 6, sec. 14; for after such recount the Judge is to certify the result to the Returning Officer who shall then declare to be elected the candidate having the highest number of votes. It cannot be made if there is an equality of votes; such a contingency must be dealt with under the next section.

(z) The casting vote of the Returning Officer, like all other votes cast at the election, should be by ballot. A difficulty may occur if the Returning Officer gives his casting vote before the expiration of the time for making application to the Judge for a recount of the votes. The final addition of the votes must take place before the Judge could entertain the application; and by the section giving the right to a recount, that final addition is referred to as “for the purpose of declaring the candidate elected.” Although the statute is not quite clear, the sections as to the final addition of the votes, and declaration of the candidate, and the casting vote of the Returning Officer, must be read in the light of the proceedings authorized to be taken subsequently to such final addition of votes; and as by the 60th section of the Act it is provided that the Returning Officer “shall in no other case (but an equality of votes) have a right to vote,” that is, shall have only have one casting vote for the election in question, the provision as to his casting vote (until a judicial decision to the contrary) should not be acted upon until either after a recount before the Judge, shews an equality of votes, or after the expiration of the time for applying to the Judge for such recount.

(a) This provision for a recount of the ballot papers was introduced by the author into the Ontario Election Law in 1876 (89 Vic. ch. 10, s. 25, O., now R. S. O. ch. 10, ss. 117-122). The clauses are in some particulars similar to the rules 31 to 37 in the first schedule of the English Ballot Act. Under that Act the Returning Officer, and not the Deputy Returning Officers, counts the ballots, and thus a uniformity of decision is obtained.

(b) Within four days after the day, &c. The general rule for the computation of time fixed by statute is to hold the first day excluded, and the last day included. When the last day is a Sunday or holiday, the application may be made on the day next following which is not a Sunday or holiday (s. 129) See West Toronto Election, 5 Pr. R. 894, in appeal 31 Q. B. 409, and Hodgins on Voters’ Lists, pp. 26, 33.

(c) This section of the Act of 1878 does not state before whom the affidavit should be made. By sec. 127 of the Act of 1874, jurisdiction is given to certain officers to administer oaths under that Act, and it further provides that “the Returning Officer at any election shall have power to administer any oath or affirmation required, with respect to such election, by this Act; and the Deputy Returning Officer may administer such oath or affirmation, except only such as may be required to be administered to the Returning Officer.” See also the Interpretation Act (31 Vic. ch. 1, s. 6, sub-sec. 16), and the “Act for the Suppression of Voluntary and Extrajudicial Oaths.” (37 Vic. ch. 37.)

(d) In some cases in Ontario, the electorial district is formed from two or more portions of judicial counties, and each of the County Judges within such counties would have jurisdiction to order a recount.

(e) The affidavit must follow the provisions of this section, and as a matter of precaution, should show such grounds for the belief of the witness, as will satisfy the Judge that the re-count should be ordered.

(f) Before proceeding with the re-count, proof of the service of the Judge’s “notice in writing to the candidates, or their agents, of the time and place at which he will proceed to re-count,” should be given.

(g) The Judge in re-counting the ballot papers, acts as an appellate tribunal from each Deputy Returning Officer, and “re-counts all the votes or ballot papers returned by the several Deputy Returning Officers,” and decides whether such officers have “improperly counted or rejected” any ballot papers at such election.

(h) See note (z) page 18.

(i) The Act of 1874, required the Returning Officer to transmit his return to the Clerk of the Crown in Chancery, “within four days after” the verification or final addition of the votes.