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Present: Mr. Justice Wood Renton.
October 31.
In the Matter of an Application under Section 42 of OrdinanceNo. 7 of 1887.
GOONEWARDENE et at. v. THE CHAIRMAN, MunicipalCouncil, Galle.
Municipal Councils’ Ordinance{No. 7 of 1887), ss. 13, 15, 16,17,18,41,and 42—Refusal to insert names of voters—Application to theSupreme Court—Jurisdiction of Supreme Court.
The Supreme Court has no power to revise orders made by theChairman of the Municipal Council, under section 42 of OrdinanceNo. 7 of 1887, refusing to insert the names of voters in the listprepared for the triennial elections.
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October 31.
PPLICATION by a number of voters in Ward No. 5 of theMunicipality of Galle to revise certain orders made by the
Chairman, under section 42 of the Municipal Councils’ Ordinance(No. 7 of 1887), refusing to insert their names in the triennial listof voters.
H. Bartholomeusz, for the applicants.
W. 18. de Saram, for the Chairman.
Cur. adv. will.
October 31, 1908. Wood Renton J.—
In the present case, I am invited on behalf of a number of votersin Ward No. 5 of the Municipality of Galle to revise certain ordersmade by the Chairman, under section 42 of the Municipal Councils’Ordinance, No. 7 of 1887, refusing to insert their names in thetriennial list of voters which has been prepared with a view to theensuing Municipal elections. At the very threshold of the caseI am faced with the question whether, under the law as it nowstands, the Supreme Court has any jurisdiction to entertain such anapplication at all. I am indebted to Mr. Bartholomeusz for havingput clearly and forcibly before the Court all that can be urged infavour of an affirmative answer to this question. But I have cometo the conclusion that it must be answered in the negative; and Ipropose to state the grounds of my decision as clearly and as brieflyas I can.
Sections 13, and the following sections of the Municipal Councils’Ordinance provide machinery for the settlement and publication ofthe list of persons who are respecti vely entitled to be elected and tovote on the original constitution of a Municipality. As they stoodin the unamended Ordinance of 1887 ; sections 15 to 18 enabled anyvoter (I am confining myself to the particular class of case now beforeme) who was dissatisfied with the omission of his name from theoriginal list to apply in writing within seven days from the date ofthe publication of the notice of its completion, to the Chairman orGovernment Agent, whoever should have prepared the list, inquestion, to have his name inserted in such list, and in the event ofhis application being refused, he had the right to apply to aMagistrate—a term defined in section 3 of the Ordinance as thePolice Magistrates having jurisdiction within the Municipality—foran order for its insertion. The Ordinance went so far as to providefor a summary inquiry by the Magistrate into the merits of theapplication, and empowered him, after such inquiry, to make suchorder, as to the insertion or omission of the name of the applicant,and as to the payment of the costs of the inquiry, as he thought just.And it further provided that, such order, “ if it direct the insertionof any name in such list,” shall be forthwith complied with “ bythe Chairman or the Government Agent, as the case may be.”
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Section 42 of the original Ordinance dealt with a different stateof things. It related to the new lists of voters which, under section41. the Chairman is direoted to prepare with a view to the triennialelection in the month of September in every third year; and itprovided that any person claiming to be qualified to vote, whosename had been omitted from such list, may, “ in accordance withthe provisions contained in sections 15 and 16, apply to the Chair-man to insert any such name, and, if need be, to a Magistrate for anorder of insertion; and every order made by such Magistrate on anysuch application directing the insertion of any name in the said listshall be forthwith complied with by the Chairman.” It was conceded,if I understood him aright, by Mr. Bartholomeusz in one part of hisargument that the effect of the reference back, in section 42, to theprovisions of sections 15 and 16 was to confer on the Magistrate anappellate jurisdiction in regard to decisions of the Chairman underthe first of the three sections, which I have just named. He con-tended, however, that sections 15,16, and 42 must be read as a whole;that section 42 is the accessory to sections 15 and 16; and that, butfor the existence of these later sections, and the incorporation of theirprovisions in section 42, there would be no right of appeal under thatsection from the Chairman to the Police Magistrate.
will take this argument as it stands, and proceed to consider itslegal effect on the changes which have been made in the MunicipalCouncils’ Ordinance of 1887 by Ordinance No. 1 of 1896. This casehas come before me on circuit and I have unfortunately beenunable to obtain access in Tangalla to the Volume of Ordinancesfor the year 1896, in which Ordinance No. 1 of that year musthave been textually published. It is true that the Ordinance hasbeen scheduled in part of that of 1887 at pages 346 to 354 of the 2ndvolume of the Revised Edition of the Legislative Enactments of theColony ; but in the reprint there given, the very sections which areof importance here are not reproduced. At the same time throughthe whole argument before me this morning, it has been assumedthat the affect of Ordinance No. 1 of 1896 on the material sectionsof the Ordinance of 1887 has been correctly set out in the amendingtext of that Ordinance itself, and as it is necessary that this caseshould be disposed of to-day, in view of the provisions I decide iton that basis.
Prior to the enactment of the Ordinance No. 1 of 1896, I take itthat there were two independent rights of appeal created by andexisting under the Ordinance of 1887. In the first place, there wasthe right of appeal in connection with the omission of names fromthe lists of voters in a newly-constituted Municipality. In thesecond place, there was the right of appeal under section 42 asregards the omission of names from the new lists, for whosepreparation provision was made in section 41. In each of thesecases the right of appeal was to the Police Magistrate. But there
October 3L
WoodRenton J.
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October 31•
Benton 3.
was a difference between the two sections of provisions in regardto what I may call the Court of first instance. In cases comingunder sections 15 and 16 it was competent for the dissatisfiedvoter to apply either to the Chairman or to the Government Agent,whereas, in cases coming under section 42 provision was made forapplications for the insertion of names being presented to theChairman alone. If I had to construe the provisions of sections15 and 16, on the one hand, and section 42 on the other, in theoriginal form, I should have been disposed to hold that theycreate entirely independent rights of appeal, and that the expressinterference of the Legislature with one of those rights could haveno effect by implication upon the other. It may be true, asMr. Bartholomeusz argued, with so. much force, that, in order tofind the right of appeal to the Magistrate under section 42, you haveto fall back on the provisions of sections 15 and 16, although, I amnot sure that the language of the last clause in section 42 whichdirects the Chairman, in terms closely following the words used insection 17, to “comply forthwith” with any “order” for theinsertion of a name, which the Police Magistrate may have made,taken in conjunction with very different language used by theLegislature, for example, in the amendment, by section 8 ofOrdinance No. 26 of 1890, or section 130 of the Ordinance of 1887,when it intended to create powers of a concurrent character, wouldnot be sufficient of itself to create an independent right of appeal.But however that may be, it is clear to my mind that when once aright of appeal under section 42 of the Ordinance of 1887 had beenconstituted, it was -a right, separate and independent, from thatcreated by sections 15 and 16 although subject to the sameconditions as to the time within which it must be exercised, and asto the form of the inquiry in which it was to be adjudicated upon.We have to turn now to the provisions of Ordinance No. 1 of 1896,and we find that what the Legislature has done in that enactmentis to substitute in the case of applications under sections 15 and 16of the Municipal Councils’ Ordinance, an appeal summarily to aJudge of the Supreme Court for the former application to aMagistrate. The Ordinance of 1896 has, however, left the provi-sions of section 42 severely alone; and as a matter of statutoryinterpretation, I am unable to hold that the Supreme Court has anyjurisdiction to entertain applications under that section. Apartfrom mere considerations of statutory construction, there may be,I think, substantial grounds of policy to which the silence of theLegislature in 1896 in regard to cases coming under section 42 maybe attributed. It may well have been thought desirable that whenthe original list of electors and of voters in a new Municipality werebeing settled there should be a right of appeal to the Supreme Court,w hich would be quite unnecessary when the limits, of the electoratein the new. body had once been fairly established. But whether
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intentional or inadvertent, the fact of the silence of the Legislatureremains.
I will say one word in conclusion with regard to the alternativeground on which, although somewhat faintly, Mr. Bartholomeusz atthe close of his argument rested his case. He said, in effect, thatthe language of section 42 is insufficient to create a right of appeal,and that all that it did, at least in the absence of corroborationfrom sections 15 and 16, was to invest the Magistrate with a con-current jurisdiction, if the Chairman of the Municipal Council, owingto absence or some other cause was unable or unwilling to act,and that as it was clearly intended in 1896 to give a right ofappeal under section 42, the court should supply the hiatus.I have already touched incidentally on this branch of Mr. Bartholo-meusz’s argument in dealing with what is really the substantial caseput forward by the applicants, and I will now only add that, if itwere sound, it appears to me that there would still be no right ofappeal under section 42 at all. It is clear law that a right of appealmust be created by language which, if not express, is at least strongenough for the purpose, and if the Chairman and the Magistratepossess, under section 42 of Ordinance No. 7 of 1887, only aconcurrent jurisdiction, there is, in my opinion, nothing in sections15 and 16 as amended by Ordinance No. 1 of 1896 which couldconfer the right for which the appellants contend. As I havealready pointed out, under those sections in their original form,the dissatisfied voter may apply either to the Chairman or Govern-ment Agent, the appeal is to the Magistrate, whose decision (seesection 18) is final. I confess that I do not see how from the merereference to sections 15 and 16, which we find in section 42, it wouldbe possible to hold that the right of appeal created by the two formersections in their amended form is carried forward by necessaryimplication into the latter. We could still find a clear and simpleinterpretation of the reference, in section 42, to the provisions ofsections 15 and 16 in the intention of the Legislature to impose thesame conditions as to the time within which application to theChairman must be made, and the form of application itself in thecase of both the classes of procedure which the Ordinance prescribes.If there was no appellate jurisdiction under section 42 in its.original form, assuredly none is created by Ordinance No. 1 of 1896.
I have endeavoured to touch upon all the points that were pressedupon me in the course of the argument.
The applications arc therefore dismissed, and I think that theymust be dismissed with costs.
October 31.
WoosRenton J.
Applications disallowed.
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January 18.
Present: The Hon. Six Joseph T. Hutchinson, Chief Justioe.
In the Matter of the Application of Allanson Herbert Gomes ofBambalapitiya, Colombo, for a writ of Mandamus on theChairman of the Municipal Council of Colombo, and in theMatter of the Eleotion of a Councillor for the Colpetty Ward.
Allanson Herbert Gomes of BambalapitiyaPetitioner.
(1) The Chairman of the Municipal Counoil ofColombo ; (2) Dr. David Rockwood of Mara-dana, ColomboRespondents. ■
Municipal election—-Mandamus-—Quo Warranto—Elections under as. 37and 40 of Ordinance No. 7 of 1887—Proxies—Conclusiveness ofChairman’s order.
Where a statutory election has taken place and an office is full,the remedy of mandamus does not lie.
A proxy granted by a person for the purpose of voting at anelection to be held as provided by section 37 of the MunicipalCouncils’ Ordinance (No. 7 of 1887), cannot be made use of for thepurposes of an election held under the provisions of section 40 of.the stud Ordinance.
/^~N December 15,1908, the Supreme Court (Hutchinson C J. and^ Wood Renton J.) issued an Order Nisi on the respondents inthe following terms :—
“ Upon reading the petition and affidavit of Allanson HerbertGomes (copies whereof are hereto annexed), and upon hearingoounsel on behalf of the said Allanson Herbert Gomes, it is orderedthat the Chairman1 of the Municipal Council of Colombo and Dr.David Rockwood of Maradana do show cause before Our SupremeCourt at Hulftsdorp on Monday, January 18, 1909, at 11 o’olock ofthe forenoon, why a writ of mandamus should not issue directingthe Chairman of the Municipal Counoil of Colombo (1) to accept the726 votes, and to declare Dr. William Paul Rodrigo duly elected asmember of the Municipal Council of Colombo for the ColpettyDivision of the Municipality for the triennial period commencingJanuary 1, 1909, or in the alternative (2) why a writ of mandamusshould not issue directing the said Chairman to hold a fresh meetingfor the election of a member for the said Colpetty Division of theMunicipality of Colombo for the triennial period aforesaid.”
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The affidavit referred to was as follows :—
“ I, Allanson Herbert Gomes of Bambalapitiya, Colombo, beinga Christian, make oath and say as follows :—
“ 1. That I am a resident in the Colpetty Division of the ColomboMunicipality, and am a person duly qualified under seotion 11 ofOrdinance No. 7 of 1889, as amended by section 2 of OrdinanceNo. 26 of 1890, to vote at the election of a member of the MunioipalCouncil of Colombo for the said Division, and my name appears inthe certified list prepared under sections 41 and 43 of OrdinanceNo. 7 of 1887 as a duly qualified voter.
“ 2. That the meeting for the triennial election of a Councillorfor the Colpetty Ward for the years 1909, 1910, 1911 was held onDeoember 5, 1908, at the Town Hall, Colombo.
‘ ‘ 3. That in the exercise of my right as a voter, I duly executed apower of attorney appointing the Hon. Mr. Abdul Raliiman, M.L.C.,or in his absence R. H. Morgan, or in his absence Dr. J. B. D. Fair lie,or in his absence J. E. Richard Pereira, or in his absence L. W. A. deSoysa, or in his absence J. P. de Vos, or in his absenoe A. E. de Silva,or in his absence J. C. Ebert, or in his absence S. L. Neina Marikar,or in his absence T. A. J. Noorbhai, or in his absence H. J. Pieris, orin his absence C. A. Pereira, or in his absenoe J. H. Senanayake, orin his absence D. Frederick Pereira, or in his absenoe William Dias,or any one of them my agent to appear at the said meeting to beheld on December 6, 1908, and to vote thereat for the election asCouncillor of the said Division of Dr. William Paul Rodrigo, he beinga person duly qualified to be elected as Councillor for the saidDivision under section 9 of Ordinance No. 7 of 1887, and fully andeffectually to all intents and purposes as I might or oould lawfullydo if present at the said election and voting in person, I herebyratifying, confirming, and agreeing to allow, ratify, and confirm alland whatsoever might be done in- the premises by my agents afore-said or any of them. The printed portions of documents A and Cannexed to the certified copy of the minutes filed herewith markedZ are a true copy of the form of the power of attorney executed byme as aforesaid.
“ 4. That at the time of signing the said power of attorney, Iwas fully aware that there was no meeting to be held for a bye-eleetion, as provided for under section 37 of Ordinance No. 7 of 1887,and that the only meeting to be held on December 5, 1908, was theusual meeting for the triennial election of a Councillor for theColpetty Division, and that I fully intended that the said agents oragent should, on the authority of the said power of attorney, vote forme at the said triennial meeting, and no other. That the saidmeeting was duly advertised by the Chairman of the MunicipalCouncil, Colombo, both in the Government Gazette and in the localnewspapers, and it was a matter of common notoriety that the
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January IS.
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1909.meeting that was to be held on December 5, 1908, was for the
January 18. purpose of electing a Councillor for the Colpetty Division for thetriennial period aforesaid, and it was the only meeting soadvertised.
“ 5. That I am credibly informed and verily believe, and theminutes filed herewith marked Z prove, that at the said meeting thatwas held on Deoember 5, 1908, 94 personal votes tendered on behalfof the said Dr. William Paul Rodrigo were registered, and 726 votesof persons, including myself, duly qualified to vote for the eleotionof a Councillor, were duly tendered by agents holding duly executedpowers of attorney in favour of the said Dr. William Paul Rodrigo,and proxies or powers of attorney representing 726 votes were handedin in favour of Dr. Rodrigo, and they were marked X by the Chairmanand taken charge of by him, but he recorded that for the reasons hewas about to reoord he rejeoted them, and he thereafter recordedhis reasons as follows :—
“ ‘ With a full sense of the important bearing which my deoisionon the point raised may have upon the present election, I do notsee my way to hold that the 726 proxies tendered on behalf ofDr. Rodrigo are valid documents. They purport to be authoritiesto vote at a meeting to be held on December 5, 1908, as provided bysection 37 of Ordinance No. 7 of 1887, and I cannot hold that theyauthorize votes at the meeting now being held under section 40.
‘ ‘ ‘ Nor do I see my way to put aside the objection as merely atechnical one. An election held under seotion 37 is a different matterto one held under section 40. The former often covering a shortperiod only, while the latter deals with the full period of threeyears, and in the absence of the evidence of the person signing asto what his intentions were, I can only be guided by the ordinarymeaning of the words to which he has subscribed.
“ ‘ I therefore hold, not without reluctance, that the 726 proxiestendered are invalid, and that the votes cannot be recorded.’
” 6. That after 157 votes were recorded in favour of Dr. DavidRockvood, the opposing candidate; further votes were called for bythe presiding Chairman, and none being tendered the poll was closedat 2.10 p.m., and thereafter the Chairman declared Dr. Rockwoodduly elected Councillor for the Colpetty Division of the Municipalityof Colombo.’
“ 7. That I am also informed and verily believe, and the saidminutes marked Z prove, that the said proxies representing 726votes had been duly signed by persons all duly qualified to vote astheir names appear in the list certified and published under sections41 and 43 of Ordinance No. 7 of 1887,’and that if they were takeninto account, Dr. William Paul Rodrigo,.and not Dr. David Rock-wood, would be the person duly elected Councillor for the saidDivision.
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“ 8. The total number of votes for the Colpetty Ward, according j909.to the list certified under the provisions of Ordinance No. 7 of 1887, January 18.for the said election of December 5,1908, is 1,190.
“ 9. The document marked Z hereto annexed is a true oopy ofthe minutes of the said meeting held on December 5, 1908.”
In showing cause against the rule, the following affidavit swornto by Dr. Rockwood was read :—
“ I was duly declared Councillor for the Colpetty Ward of theColombo Municipality at the triennial election held on December 5,
1908, for the years 1909 to 1911, and I have accepted and acted inthe said office of Councillor.
“ Although only 157 votes were recorded for me, 1 had altogetherover 600 votes, but in view of the Chairman’s expression of opinionon the first objection raised to the proxies presented by Mr. Rodrigo’sattorneys, counsel representing me at the meeting did not think itnecessary to record any further votes, as such a course would haveinvolved an unnecessary waste of time.
“ The 726 votes referred to in paragraph 5 of the petitioner’saffidavit consisted of proxies signed by some of the qualified votersof the Colpetty Ward, and a large number of them purported to besigned on the very day of the election, which took place at 8 a.m.
“ The said number of proxies in favour of Dr. Rodrigo inoluded
proxies of persons who had already recorded their personal votes,
proxies which had been expressly revoked by the persons whohad granted them, (c) proxies of persons who were out of the Islandor not in the Island on the dates on which they purport to have been’signed in Colombo, (d) proxies bearing dates of execution, prior toNovember 10. 1908, being the date on whioh the Chairman had fixedDecember 5, 1908, as the date for the election.
“ The attorneys of Dr. Rodrigo presented a proxy purporting tobe signed by one W. Rany in December, 1908, but the said personwas out of the Island, having left Ceylon some months previously.
There were other proxies which stood on the same footing.
“ Counsel who appeared for me at the election meeting did notdeem it necessary to take that and other objections to which thesaid proxies were open in view of the Chairman’s opinion on thefirst objection raised, which applied to all the proxies in favour ofDr. Rodrigo, and my counsel, in the presence of the counsel on theother side, and of Mr.’ Harry Creasy who acted as legal adviser tothe Chairman, and in the hearing and presence of several others,specially requested the Chairman who presided at the election-tomake a note in the record of the proceedings of the meeting to theabove effect, and that a large number of proxies signed in myfavour were with him.
“ The proxies granted in favour of Dr. Rodrigo and presented atthe election were proxies intended for a bye-election under section 37
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1909. of the Ordinance No. 7 of 1887, and not for a triennial eleotion underJanuary 18. section 40 of the said Ordinance, and, as a matter of fact, there was abye-eleotion during the year 1908, to wit, on July 10, 1908, to fillthe vaoanoy created by the death of the late Dr. W. H. de Silva.”
J. C. Pereira (with him F. H. B. Koch and if. L. Pereira), forthe applioant.
VanLangenberg, for the Chairman, did not wish to take part inthe argument, and expressed his willingness to abide by any ordermade by the Court.
Jayewardene (with him C. B. Elliott), for Dr. Rockwood.
January 18, 1909. Hutohutson C.J.—
There was a meeting to be held at the Town Hall on December 5,1908, for the election of a Councillor for the Colpetty Division ofthe Municipality of Colombo. The eleotion was for a Councillorunder section 40 of Ordinance No. 7 of 1887, who was to hold officefor three years from January 1, 1909. The Ordinance enacts thatat these elections every voter shall vote either in person or by hisagent holding a duly executed power of attorney, and that theChairman shall preside. At the meeting on the appointed daythere were twp candidates. After some personal votes had beenrecorded, a proxy was tendered on behalf of one of the candidates,Dr. Rodrigo, to which the other candidate took objection, on theground that it was a proxy granted for the purpose of an election tobe held under section 37 of the Ordinance. The Chairman upheldthe objection ; and he upheld the same objection afterwards to alarge number of other proxies which were tendered on behalf of thesame candidate ; and the result of his rejecting these proxies wasthat the other candidate, Dr. Rockwood, had a majority, and wasdeclared duly elected, Mr. Gomes, who is a voter, then applied forand obtained a rule nisi for a mandamus requiring the Chairman toaccept the votes which he had rejeoted, and to declare Dr. Rodrigoduly elected, or, in the alternative, to.hold a fresh meeting for theelection; and I have heard arguments to-day against and in supportof that rule. On the first question, whether or not this Court hasjurisdiction, in a case of this kind where the offioe is full, to grant amandamus for a fresh eleotion, on the ground that the one whichhad been held was improperly held or was void, there is, on the onehand, the authority of a decision of Wendt J. reported in 9 N. L. R.156,and on the other the decision of three Judges, including Wendt J.,in 1 Appeal Court Reports 128. My present opinion is, on theauthority of the last case, that the Court has no jurisdiction to granta mandamus in such cases ; but I will not go into that question atlength, because I think that this rule should be discharged on theground that the Chairman’s decision is right. All the proxies which
were rejected were on printed forms, with blanks for the names of thevoter and his address, and, in some oases, for the date of electionand for the date when the proxy was signed ; and they all authorizethe attorneys in the name of the voter to appear at the meeting to beheld on December 5,1908, at the Town Hall, as provided by seotion37 of Ordinance No. 7 of 1887, for the eleotion of a Councillor forthe Division or Ward, or on any day or at any place for which the- meeting for the said eleotion inay be advertised, or adjourned orpostponed, and then to vote for Dr. Rodrigo. There was an electionto be held on December 5, 1908, but it was an election under seotion40 and not under seotion 37, seotion 37 being that whioh refers tobye-elections. It is impossible to say now, without taking theevidence of the voters, that it is clear what was intended by theseproxies. Certainly it is not clear without evidence that the proxieswere intended to apply to an eleotion under section 40, and therewas no evidence taken or, so far as appears from the Chairman’snotes, offered. It is urged on behalf of the applicant that the words“ section 37 ” are only a technical ^or clerical error ; that the votersknew what the election was whioh was to be held on December 5;and that it is clear from the proxies themsleves that the votersintended to authorize their attorneys to vote in their names at theelection under section 40. To my mind that is not at all clear,although it may perhaps seem so to persons who know more thanappears on the papers before me of all that had taken place beforeand at the time of the election. It seems to me that if there hadbeen only one such proxy tendered, and the Chairman had read itthrough and had seen that it was a proxy for an election undersection 37, he would without hesitation have said that it was notavailable for an eleotion under section 40, and that everybodywould have thought he was right.
think, therefore, the rule must be discharged. The applicant topay the costs of both the respondents.
January 18.
Rule, discharged.