The main legal point established in the judgment is that non-compliance with election rules must materially affect the election result to warrant voiding the election.

Cornish, J.

1. The petitioner, the successful condidate at a District Board Election, prays that a writ of certiorari may issue to bring up and quash the order of the election Commissioner declaring his election void and ordering a fresh election. The result of the poll was that the petitioner had been returned by a majority of 114, having polled 1206 votes to the 1092 votes for his opponents, the first respondent. An election petition was brought by the first respondent alleging certain irregularities in the conduct of the polling officer in one of the polling booths. What had happened here was that the Polling Officer by a mistake had marked on the back of each ballot paper the number of the voter in the Electoral register. This number, according to Rule 16, is only to be marked on the counter-foil when the ballot-paper or counter foil is handed to the voter. The result was that 322 ballot papers so marked and put into the ballot-box in this polling booth were invalidated and rejected by the Election Officer. Two of these ballot papers were apparently invalid ort other grounds.

2. Rule 10(c) of the Local Boards Act rules governing disputed elections provides:

If in the opinion of the Election Commissioner the result of the election has been materially affected...by any non-compliance with the provisions of the Act or the rules made thereunder, the election of the returned candidate shall be void.

3. There were, therefore, two questions for the Commissioner to decide. Firstly, whether there had been a non-compliance with the Act or the rules; and secondly, whether such non-compliance had materially affected the result of the election. Undoubtedly there had been an infringement of the rules when the Polling Officer marked on the ballot papers the voters numbers which he was only authorised to mark on the counter-foils. He made the same mistake as the presiding officer made in Woodward v. Sarsons (1875) L.R. 10 C.P. 732 with equally fatal results to the validity of the ballot papers. Rule 20(1) says that:

Any ballot-paper...on which any mark is made by which the elector may afterwards be identified shall be invalid.

4. The rule is modelled on Section 2 of the Ballot Act (35 and 36 Vic. C. 33) though the local draftsman has chosen to substitute the word "may" for the word "can" in the English Act and to introduce the superfluous word "afterwards" before the word "identified". But the effect of Rule 20 and Section 2 is the same; it is to invalidate any ballot paper bearing on it a mark or writing indicating the identity of the voter. The Polling Officer had infringed Rule 16 and the ballot papers offended against Rule 20, so that there was certainly here a non-compliance with the rules.

5. The next question was whether this non-compliance had materially affected the result of the election. Rule 10(c), which makes this the basis of the Commissioners power to declare the election void, has been extracted from Section 13 of the Ballot Act. The words "result of the election" in the section have been held to mean the return of the candidate and not the amount of his majority. See Rogers on Elections Vol. II, p. 41 and the cases there cited. The words must have the same meaning in the Rule. So that if the number of ballot papers rejected by reason of non-compliance with the rules did not suffice to turn the scale against the elected candidate, though the extent of his majority might be affected, the result of the election could not be held to have been materially affected. This is made very clear by Mr. Justice OBrien in East v. Clare (1892) 40 M. & H. 162 where he said:

I do not at all agree with the construction put upon that section (i.e., Section 13 Ballot Act) by Mr. Justice Grove in the Hackney case. He there says that "the result of the election" does not necessarily mean the return of the candidate, but means his return by the particular number of votes. In his opinion therefore if the mistake or non-compliance with the rules prod