097-NLR-NLR-V-22-LUDOWYKE-v.-THE-CHAIRMAN,-MUNICIPAL-COUNCIL,-COLOMBO.pdf

( 338 )
1920.
Present: Schneider A.J.
LUDOWYKE v. THE CHAIRMAN, MUNICIPAL COUNCIL,
COLOMBO.
770—M. G. Colombo, 30.
. Municipal Councils Ordinance, ss. 11 and 15—Power of attorney by awidow in favour of appellant to vote at an election—Direction tovote for a particular candidate—Is power invalid?
A widow under the provisions of section 11 (1) (i) of the MunicipalCouncils Ordinance nominated the appellant to be her attorneyfor the purpose of.‘voting for the election of a member “ and torecord the vote in favour of Dr. Rodrigo.”
Held, that the words “ to record the vote in favour of R ’’ didnot vitiate the power.
rpHE facts appear from the judgment.
E. W. Jayawardene, for applicant, appellant. .
A. St. V. Jayawardene, heard contra, as amicus curise.
Cur. adv. vult.
October 22,1920. Schneider A. J.—
Under the provisions of section 15 of the Municipal CouncilsOrdinance, 1910, the appellant applied to the Chairman to havehis name inserted in the list of voters for one of the divisions of theColombo Municipality claiming to be a person qualified to votewithin that division. This application the Chairman referred tothe Municipal Magistrate, .who, by his order of September 29 last,disallowed the application. This is an appeal from that orderunder the provisions of section 16 of that Ordinance.
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The appellant claimed to be qualified as the attorney of a widowwithin the provisions of section 11 (1) (i) of the Ordinance. Therelevant portion of the power of attorney is as follows :■—
“ Now know* ye and these presents witness that I, the said. . . . do hereby nominate, appoint, and constitute. .
of . . . . to be my attorney for the purpose of voting for theelection of a member for the Wellawatta Division of the Munici-pality of Colombo, and for that purpose to take all proper or neces-sary steps, to have’ his name placed on the voters’ list for the saidWellawatta Ward for the year 1920, to vote at the election to beheld in the month of December, 1920, for the election of a member,and to record the vote in favour of Dr. William Paul Rodrigo,of Bambalapitiya, Colombo, and generally to do every such actas is necessary for the said purpose of placing or causing his nameto be placed in the said voters’ list, and to record his vote at thesaid election.”
The learned Magistrate considered that the insertion of thewords “ and to record the vote in favour of Dr. William PaulRodrigo ” vitiated the power altogether and rendered it invalidfor any of the purposes for which it was intended. The reasonsgiven by him are :—
That the words in question “ fettered the grantor’s discretionand tied her down ” two months before the election to votefor a particular candidate ; and
That they tend to make public the fact that the vote was sotied down and thus defeat the object of making the ballota secret ballot.
In my opinion, not only are these reasons not sound, but theyare good reasons for not Upholding the Magistrate’s order.
In the first place, it seems to me that the Magistrate had nojurisdiction to enter into the question of the validity of the powerin so far as the words in question are concerned. Those wordsare a direction as to how the ” attorney ” shall vote; that part.of the power does not come within the scope of the summary,inquiry which it is the duty of the Magistrate to hold when an appli-cation has been referred to him. His inquiry must be limited toascertaining whether the applicant and the widow who has appoint-ed him “ attorney ” has each of them the qualifications required bysection 11 of the Ordinance. If he is satisfied that the applicanthas the qualifications mentioned in section 11 (2) (a), (b), (e), and(/), and possibly (c) also, and the widow the qualifications mentionedin (c), (d), and (h) or (g), then the only other matter for him to decideis whether the applicant is “ attorney appointed for the purpose ”by the widow (section 11 (2) (i)). It is quite obvious from theopening words of section 11 (2) that the words “ the purpose”mean “ to entitle.the applicant to have his name placed on the listof voters.” Hence, the only part of the power which the Magistrate
1920.
SCHNEIDEB
A.J.
Luiowykev. TheChairman,MunicipalCouncil,Colombo
( 340 )

A.J.
Ludotoykev. TheChairman,MunicipalCouncil,Colombo
need have looked at or had power to consider was that partwhereby the* -applicant was appointed attorney for the purpose ofhaving his name placed in the list of voters. The language clearlyindicates that the power does appoint the applicant attorney inexpress terms for that purpose.
Where a power authorizes an attorney to do several acts, and thepower granted is invalid as regards some actjg, it does not at all .follow that it is invalid as regards some of the matters^nd valid asregards others with which it is concerned.
The learned Magistrate’s reasoning is all based upon a wrongpresumption. He thinks that it is the widow who has the rightto vote. This is dearly not correct. The very first qualificationrequired of a person to be a voter is that he should be of “ themale sex.” A widow therefore cannot be a voter. The intentionbehind the provision in section 11 (2) (t) is that where a widow hasthe necessary property qualifications, inasmuch as she is not qualifiedto be a voter herself, her eldest son may vote as if her propertyqualification was his own, or the widow may authorize some otherperson to use her property qualification in order to have his nameplaced on the list of voters. The word “ attorney ” in paragraph(») of sub-section (2) of section 11 is inappropriate; The widowherself has no right to be a voter, how can she therefore attorn aright she does not possess ? As the widow in this case did notherself possess the right to be a voter, she had no power to authorizeor direct the applicant to vote for any particular person. Thedirection in the appointment that the applicant is to vote forDr. Rodrigo is mere surplusage-and should be disregarded.
There appears to be some misapprehension as to the object of asecret ballot. The main, if not the only, object of a secmt ballotis to assure the voter that his vote would be kept secret, so that,considerations arising from the misapprehension of his vote beingknown may not weigh with him in giving his vote. Therefore,the fact that a voter had agreed to give his vote in favour of anyparticular candidate or had publicly declared how his vote wouldbe given cannot deprive him of his right to vote. The effect of thelearned Magistrate’s order is to deprive a person entitled to voteof his right to vote because he had tied himself down to vote forsome particular candidate, or had . publicly declared his intentionof voting for that candidate.
1 would, therefore, set aside the.order appealed from and remitthe record for proceedings in due course.
Mr. E. W. Jayawardene, who appeared for the appellant in thisappeal,-and who appears for the appellants ii^ppeals Nos. 771-778,in which I understand the same point of law is raised, agreed thatthe decision of this appeal should conclude those appeals.
Let order be entered in those appeals accordingly.
Bel aside,