officer for the purpose of taking the votes cast at the municipal election for the said city, to be held on the 12th December, 1910. This appointment is made by virtue of sec. 94 of the Cities Act. But in by-law 467 they go further and say, "and the votes to be cast on the local option bylaw." Now, sec. 94 gives no authority to the city to do this, as I have already pointed out, and the appointment of Mr. Heal as returning officer on the local option by-law vote must be made in the local option by-law itself, and, as this was not done, there was no returning officer or person to sum up the votes appointed as provided by sec. 214.

The question was discussed as to this in Re Ryall and Town of Carman, 16 W. L. R. 380, which was before the Court of Appeal in Manitoba at the same time the Portage La Prairie case was decided, viz., December, 1910. In his judgment in the Carman case Cameron, J.A., with Howell, C.J.A., concurring, said: "By-law No. 77 of the town of Carman, forbidding the receiving of any money by the town of Carman for a license under the Liquor License Act, was read a first and second time on the 15th August, 1909. Bylaw No. 78 was introduced and read a first, second, and third time on the same day. The last named by-law (1) fixed the date, time, and place of the polling as those of the annual municipal election, the 21st December, 1909; (2) provided that the proposed by-law could be seen on file at the office of the clerk; (3) appointed the clerk of the town returning officer; and (4) fixed the time when the summing up of the vote should take place, and the time when and the place where the mayor should appoint the persons to attend at the polling places and the summing up of the vote. By-law No. 77 was voted on by the electors on the 21st December, 1909, and read a third time and passed on the 14th January, 1910. It is objected that it has been attempted to do here by two by-laws what is intended by the statute to be done by one, and that, therefore, by-law No. 77 is defective on the face of it, and must fail. The reasoning adopted and the authorities cited in the case of the Portage La Prairie by-law justify this conclusion. The provisions for fixing a time when and a place where persons shall be appointed to act at the polls and at the summing up are constituent parts of the by-law, the absence of which particulars from the by-law renders it inoperative and void, and incapable of being affected by sec. 200 of the Municipal

Act. It is to be noted that these two by-laws are materially different. The first and second reading of by-law No. 77 were passed by the council at one meeting, and it was then voted on by the electors before being passed a third time. The other by-law was passed through all its stages by the council at the same meeting at which by-law No. 77 was read a first and second time. It is impossible, to my mind, to read the statute as contemplating or providing for more. than the one by-law, which must contain within itself all the essential provisions prescribed by law. My conclusion, therefore, is that by-law No. 77 is defective on the face of it, and must fail. I do not need to discuss the other grounds referred to in the argument."

The procedure followed by the city in this case was identical with that followed by the town council in the Carman case, and, in addition to what I have said on the matter, I adopt the judgment of the Court of Appeal in Manitoba, and hold that by-law No. 468 is defective on the face of it and must be quashed. The Ontario decisions are also in accord with what I have said. In Re Bell and Township of Elma, 13 O. L. R. 80, Falconbridge, C.J., and Britton and Mabee, JJ., set aside a local option by-law, holding that the omission of the time and place where the votes . are to be summed up, as provided by secs. 341 and 342 of the Ontario Municipal Act, 1903, is the omission of a material part of the by-law and makes the by-law invalid, and that the curative section of the Act does not apply, as the omission was more than an irregularity, and that the by-law must be quashed. This was decided in Ontario in 1906; and in 1910 Mr. Justice Britton, giving the judgment of a Divisional Court in Re Schumacher and Town of Chesley, 21 O. L. R. 522, at p. 539, quoting from the judgment of Anglin, J., in Re Kerr and Town of Thornbury, 8 O. W. R. 451, said: "I have ascertained from the Chief Justice of the King's Bench that the ground of decision was that the provisions of sec. 341 of the Municipal Act are imperative, and that an omission in a by-law . . to fix a time and place for the appointment of persons to attend the various polling places . . . is fatal.' And the learned Judge says, p. 452: If failure to comply with the provisions of sec. 341 would be fatal, then I think failure to comply with the provisions of sec. 342 must also be fatal.' This is the ratio decidendi of the Thornbury case. But,

with much respect, I do not think that, granting that sec. 341 is obligatory and cannot be cured by sec. 204, the same rule must apply to sec. 342."

So that in Ontario the failure to appoint a person to sum up the votes, as required by sec. 214, is fatal to the by-law, and I think it should be so in Saskatchewan, and hold that it is.

In the Portage La Prairie case Mr. Justice Richards, in his judgment in the Court of Appeal, said (15 W. L. R. at p. 728): "And as to the last point, sec. 377 of the Municipal Act definitely says, the council shall, by by-law, fix a time and place for the appointment of persons to attend at the various polling places and at the final summing up of the votes by the clerk respectively, on behalf of the persons interested in the by-law and promoting or opposing the passage thereof respectively.. It is contended that sec. 377 is mandatory, and not merely directory. Section 341 of the Ontario Municipal Act is to the same effect, and almost in the same words, as our sec. 377. It has been held that under sec. 141 of the Ontario Liquor License Act the above sec. 341 is applicable to a local option by-law. Section 68 of our Liquor License Act is much the same, in effect, as sec. 141 of the Ontario Liquor License Act, though differently worded. One of the most im

portant things about the voting on such a by-law, is that there shall be an appointment of scrutineers, and an equally important thing is that those interested on the different sides may have the privilege of attending at the time of the appointment, and of suggesting names of persons they wish to have appointed to act as scrutineers in the interest they support, and objecting to any persons named on that side who, they may think, would not represent such interest. The appointment of proper persons to act as such scrutineers is patently a most important matter 'for the purpose' of the polling. Therefore, by omitting to provide, in the by-law, for such time and place of appointment of scrutineers, a most important matter for the purpose of the polling was omitted. It has not been shewn that, in this case, any evil has resulted from the omission; and probably none has. But it is not an excuse for the omission of a mandatory statutory requirement to say that no evil has resulted. I think the rule is as stated by Mr.

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Chief Justice Killam in Hall v. South Norfolk, 8 Man. L. R. at p. 459, where he says: The only safe course is to act on the supposition that the legislature meant what it said. when it prescribed the method of procedure, and to hold the by-law invalid if the method has not been followed."" If the plain provisions of our Act had been followed, there would have been no motion to quash this by-law.

I do not intend to discuss at any length the other grounds taken by Mr. Hare.

One of these grounds was that to the instructions to voters, besides that which was authorised by the statute, there was added the following: "In the following form of ballot paper given for illustration the voter has marked his paper against the sale of intoxicating liquor. Voting on by-law respecting the sale of intoxicating liquor in the city of Moose Jaw and respecting the issue of licenses therefor submitted to the persons entitled to vote thereon in the said city of Moose Jaw this 12th day of December, 1910. AGAINST THE SALE OF LIQUOR X

FOR THE SALE OF LIQUOR

I am of opinion that the instructions to voters posted outside and inside the poll booth, containing, as it did, this silent canvasser for the by-law, was a step not authorised by statute, and is of itself sufficient to quash this by-law. Why the persons in favour of this by-law did not follow the statute strictly, I do not know. If they go further and add something to the instructions to voters which is not authorised, they do it at their peril. The instructions to voters should be followed verbatim et literatim.

The only other objection to the by-law which I need discuss is, that the provisions of sec. 132 of the Liquor License Act were not followed. That section reads as follows: "The council shall, by by-law, fix the date, hour, and place for taking a vote on the by-law to be submitted; the date of voting on the by-law shall be the date of holding of the annual election of the council of the municipality."

Mr. Hare's affidavits shew me that he was required to vote for mayor and aldermen at the city hall, but when he wanted to vote on the local option by-law he had to vote at the Victoria school. This is altogether irregular and not in accordance with the statute. Under the statute every

elector is entitled to vote on the local option by-law at the same place as he is entitled to vote for mayor and aldermen, and to hold otherwise would put the labouring man, and, indeed, many others, to great inconvenience, and might also have the effect of depriving many electors of their votes. No one cares to vote for mayor and aldermen in one part of the city, and then have to walk perhaps a mile to vote on the local option by-law, especially as the Act distinctly states that the voting on both shall be at the same place. I think this is not such an irregularity as the curative section applies to. I cannot say that it did not interfere with the getting out of the vote, and am of the opinion that the curative section does not cure the plain departure from the statute.

In conclusion, I may say that I intended at first to deal only with the petition and shew that it was bad; but, the other grounds having been raised before me, and there being no decision in our Courts on the questions raised, I considered it my duty at least to state my view of the law and to make the law in Saskatchewan on local option by-laws consistent with that in Ontario and Manitoba, so far as it was possible.

The by-law will be quashed, and, as the petition on which the by-law was submitted was bad and the council should not have submitted a by-law on that petition to the electors, costs will go against the city, including the stenographer's fees. Costs will be taxed on the Supreme Court scale.

CRAIG, J.

YUKON TERRITORY.

FEBRUARY 24TH, 1911.

CITY OF DAWSON POLICE COURT.

REX v. DUBOIS AND BRADY.

Criminal Law-Keeping Common Gaming House-" Gain" Payment for Cards and Refreshments

Room in

Licensed Hotel-Place of Resort for Gamblers not being Guests in Hotel-Increase of Hotel Business—“ Rakeoff."

Held, that a hotel-keeper who provides a room, heating and lighting the same, where persons, not guests of the hotel, resort regularly for the purpose of gambling, and from which gain results