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Colonial Cases

Tel Aviv Election, 1932


Tel Aviv Election

High Court, Palestine
Source: The Palestine Bulletin, 13 March 1932



Order Nisi Granted

   The High Court, composed of The Chief Justice and Mr. Justice Frumkin, granted an Order Nisi on Friday upon the District Officer, Mr. Epstein (in his capacity of Returning Officer) and Dr. Rabinowitz, Chairman of the Tel Aviv Electoral Committee to show cause why the elections to the Tel Aviv Local Council, scheduled for next Tuesday, should not be restrained until the names of the three petitioners claiming the right of vote had been placed on the voters' register.  The return day has been fixed for what was to have been Election Day, thus postponing the election.

   The petitions had been filed by Mr. Horowitz and Dr. Smoira, on behalf of the three residents. [See also Friday, 11 March 1932.]


The Palestine Bulletin, 21 March 1932



   Important questions of the Law of Franchise under the Local Counsels Ordinance were raised in the three cases brought before the high Court by Dr. Smoira and Mr. Horowitz, on behalf of three petitioners, in connection with the elections to the Tel Aviv Local Council, which were fixed for last Tuesday and postponed by the High Court pending its decision.

The Water Rate

   In the first case, in which Mr. Kaufmann is the petitioner, the point in issue is  whether or not the payment of rates for survives of water provided by the Tel Aviv Local Council are rates by the payment of which the petitioner became entitled to vote.  Mr. Rabinowitz, the Chairman of the Electoral Committee, who appeared as a Respondent at the Return day for the Rule Nisi, argued that the water-rates are not rates in the proper sense of the word but payment for goods which could be bought and were bought also by people living at Jaffa and therefore were not "rates£" qualifying for voting.

   To this Mr. Horowirtz, Counsel for the petitioner, answered that in the Township of Tel Aviv Order of May 11, 1921, which enumerated the taxes rates and fees which the Council shall have lower to levy the rates for services of lighting and water were the only payments which were called rates.  These rates, said Counsel, were assessed on immovable property in accordance with the number of rooms occupied by the ratepayer; furthermore, these water rates were collected, in the same manner as Municipal Taxes and Rates, by the Execution Office without need of a Court's decision, a clear indication of their character as real rates.  The example of residents of Jaffa paying Tel Aviv for water, did not prove anything, said Counsel, as of course actual residence at Tel Aviv was a condition for the right of voting.

   The Court, composed of the Chief Justice and Justice Frumkin, reserved judgment which is expected to be delivered to-day.


   In the second case Mr. Horin claimed to have been improperly excluded from the register of Voters, although he had paid during the twelve months before the date of the appointment of the Electoral Committee, on account of taxes and rates due from him to the Council an amount not less than 500 mils.

   Mr. Rabinowitz did not dispute the actual payment but argued that as that payment was not in respect of the year 19831, but in respect of the year 1929, it did not qualify the petitioner for franchise.

   Dr. Smoira, Counsel for petitioner, answered that the Regulations for Conducting Elections to the Council of Tel Aviv in Clause 1 (e) did not require a payment of rates or taxes in respect of the current [of] financial year but only a payment within the last year of rates and taxes due from the inhabitant, irrespective of the period for which the payment was made.

Lodger Vote

   The Third case, in which Mr. Krubi is the petitioner and in which the right of voting of joint occupants of fasts is the point in issue, will be argued to-day in the High Court.


The Palestine Bulletin, 22 March 1932



   The High Court composed of the Chief Justice ands Mr. Justice Frumkin heard yesterday the third of the Tel Aviv Franchise Cases.

   In this case Mr. Krubi, the petitioner, claims to be entitled to the right to vote although he is only a sub-tenant or lodger.  The petition had been filed by Mr. S. Horowitz and Dr. Smoira and a Rule Nisi was granted on March 11.

Joint Tenancy

   Mr. Eliash who opposed on behalf of the respondent, the Chairman of the Tel Aviv Electoral Committee, pleaded that the committee was right in excluding the petitioner from the Register of Voters.  The provision, he said, concerning joint occupancy in the Tel Aviv Electoral regulations of 1928, on which the petitioner based his claim, was not applicable, as there was no "joint occupancy" in the case of a tenant and sub-tenant.  Counsel for respondent quoted definitions of "joint tenancy" from Law Dictionaries to show that a "joint tenancy" requited a common legal; source for the tenancy of both tenants, whilst in the case of a lodger or sub-tenant was a derived one.  Mr. Eliash further referred to the Order of 1929 under which the Hospitals and Education Rate was not to be levied upon such lodgers.

"Joint Occupancy"

   Dr. Simon on behalf of the Petitioner said that the answer to the question at issue was to be found only in the Ejection Regulations of 1928 and not in the Order of July, 1929, which merely provided the machinery for collecting the Rate, but did not affect and by its terms did not purport to affect the franchise qualification which was governed exhaustively by the Election Regulations of 1928.

   Definitions of "joint tenancy" were of no use in this case, a said Counsel, as the law did not use the words "joint tenancy" but "joint occupancy," a very wide tern, indicating all kinds of actual joint possession irrespective of the title, and therefore including occupation as owner or tenant or lodger.

   The English Representation of People Act 1918 required as qualification for the Local Franchise, occupation as owner or tenant, but even under the Act lodgers were included where the rooms were let to them in an unfurnished state.

   Under the express provision of section 1 of the Tel Aviv Election regulations, Dr. Smoira said, where premises were in the joint occupation of two or more persons, each of the occupiers was, for the purpose of enjoying the right of voting, to be treated as occupying the premises, provided that the amount of rates paid in respect of the premises when divided between the joint occupiers was such as to give a sum of not less than 500 mils for each occupant.

   The present case, said Counsel, was covered by that provision.  The Rate in question, he added, was a rate levied not on individual, but on buildings; there was a sort of constructive payment of rates by the lodger to the Local Council through the medium of his landlord, recognised by the Law as qualifying for franchise.

   The elections were held in 1928 under the said regulations and franchise was then granted to lodgers without technical difficulties being encountered; but even if now some difficulty arises in locating the lodgers, this was not a sufficient reason for deviating from the clear law and for disenfranchising them, Dr. Smoira concluded.

   Judgment was reserved in this case as in the two previous franchise cases.


The Palestine Bulletin, 8 April 1932



We give below the full text of two judgments, in the Tel Aviv Franchise cases delivered by the Chief Justice yesterday.  The third will be published in a subsequent issue.

   The petitions were heard in the Court of Justice before the Chief Justice and Mr. Justice Frumkin.

   In the petition of Yehuda Horen (Petitioner) against District Officer, Jaffa, in his capacity as Returning Officer, and the Chairman of the Electoral Committee for the Local Council of Tel Aviv, (Respondent).

   Judgment: In this case the petitioner asks for as rule to be directed to the Electoral Committee of the Tel Aviv ordering them to include his name in the Register of Voter, inasmuch as he claims to be qualified under section 1 of the schedule to the Order under the Local Councils Ordinance dated 11th October 1928.

   The point in dispute is confined within narrow limits, concerning the petitioner's qualification under section 1 (e) of the schedule.  This sub-section runs as follows:

"Every male or female person who has, within the period of 12 months preceding the date of the appointment of the Electoral Committee, paid rates and/or taxes due from him to the Council to the amount of at least 500 mils, shall be entitled to vote in the election of members of the Council of Tel-Aviv."

   It is not in dispute that the petitioner has within 12 months paid sums due from him to the Council amounting to 500 mils, but the payment which he made was not in respect of the current year but in respect of 1929.  He paid this sum two years in arrear, and though he has maintained a residence within the township, having become a lodger, he has not been liable for any amount in respect of the years 1930 or n1931.

   The view taken by the Electoral Committee is that the subsection in question must intend the qualification to be acquired only b y the payment of rates ort taxes due in respect of the current year and that they payment, such as this, of arrears of rates or taxes, due in respect of a previous year, does not constitute a qualification.

   We have, however, to look at the words used in the enactment in question and if they are capable of a sensible meaning we cannot read into them other words.

   In effect, what the Electors Committee asks us to do is import into the section the words which in a similar connection occur in section 2 of the Municipal Franchise (Amendment) Ordinance 1926, No. 46 of 1926, where it is provided that "any person ... who has paid ... taxes ... to an amount of at least P.T. 50 in respect of the current financial year shall be entitled to vote."

   It was said by Lord Mersey in Thompson v. Gould 79 L.J. K.B. p 911: "It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity, it is a wrong thing to do."

   The result of holding that the Electoral Committee is wrong may lead to some unexpected consequences, such for example, as the right of a person, owing arrears of rates or taxes amounting to, let us say, several pounds, to secure a vote by paying only 500 mils, while still remaining a debtor to the Council in respect of the balance of what is due.  The remedy, however, is not for us but for the Legislature.

   We must construe the order as it is without regard to the consequences.

   The Rule Nisi is to be made absolute with L.P. 2 advocate's fee and costs.

(Sgd) Michael F. J.  McDonnell, Chief Justice.

   In the application of David Krubi (Petitioner) against the same respondent as in the previous case.

   Judgment: I am satisfied that whether or no we are concerned with a request for an order directed to a public officer or a public body in regard to the performance of their public duties as contemplated b y Section 6 of the Courts Ordinance 1924, the present application is one not within the jurisdiction of any other Court and necessary to be decided for the administration of justice, and is, in consequence, one within the contemplation of Article 43 of the Palestrina Order-in-Council.

   I am further satisfied that the provision in Section 4 (3) of the Order under the Local Council's Ordinance of the 11th October 1928, which provides that the decision of the Electoral Committee of Tel Aviv, as to the names' to be included in the register, shall be final does not exclude the jurisdiction conferred upon the High Court by the above cited article of the Palestine Order-in-Council.

   The second Respondent in this case, as Chairman of the Electors Committee for the Local Council of Tel Aviv, is summoned to show cause why the Electoral Committee should not include in the Register of Voters the name of the petitioner, who has occupied during the course of the year in question one room in two successive flats in the occupancy of one Dr. Sinai.

   The application is made under the last paragraph of section 1 of the schedule to the Order of the High Commissioner of 11th October 1928, dealing with the Local Council of Tel Aviv, made under the Local Councils Ordinance 1921.  The paragraph in question runs as follows:

"Where land or premises are in the joint occupancy of two or more persons, each of the occupiers shall for the porpoise of registration as a voter and of enjoying the right of voting, be treated as occupying the premises, provided that the amount of rates paid in respect of the land or premises when divided between the joint occupiers is such as to give a sum of not less than 500 mils for each occupant."

   There is no dispute as to the fact that a sum of more than 1000 mils has been paid by way of rates and taxes in respect of the flats in which the petitioner has occupied the remaining rooms.  What we have to decide is whether a sun-tenant or lodger, such as the petitioner, can be held to be a joint occupier with the landlord of his lodging.

   The arguments of counsel on either side have not been of great assistance to us inasmuch as they have given us no authority as to the interpretation of the words "joint occupancy" or "joint occupier," occurring in statutes of the Imperial Parliament, and have contented themselves with arguments based upon the meaning of the term "joint tenancy,"  and the applicability or non-applicability to the paragraph in question of the definition of the word "occupier" occurring in the Order of the 31st July 1929 which relates to the levying of rates by the Local Council of Tel Aviv.

   Expressions relating to joint occupancy occur in several British Franchise Acts e.g.:

   Section 6 (3) of the Parliamentary and Municipal Registration Act 1874, 41 and 42 Vict. Cap. 26, refers to cases "where lodgings are jointly occupied by more than one lodger."

   I have, moreover, found a decision in the English Reports, which appears to us to put the matter beyond argument, based upon the interpretation of the Representation of the People Act 1867, 30 and 31 Vict. Cap. 102.

   Section 3 of the Act in question provides, that every man shall be entitled to be registered as a voter who is qualified in one or other of certain modes, and then follows this proviso:

"provided that no man shall under this section be entitled to be registered as a voter by reason of his being a joint occupier of any dwelling house."

   In the case of Brewer v. McGowan (1869) L.R. 5 C.P. page 239, it was held that a person otherwise qualified did not become a joint occupier within this proviso, and so lose his qualification, by letting to a lodger the exclusive use of a bedroom and the joint use of a sitting room.  In the case in question the bedroom, which the lodger occupied, was a furnished bedroom.  In the present case the lodger occupied a single unfurnished room.

   It appears to me that if the landlord of lodgings under the English Statute does not become a joint occupier and so lose his qualification by letting to a lodger not merely the exclusive use of a furnished bedroom but also the joint use of a furnished sitting room by a parity of reasoning a lodger cannot, under the Order which we have to interpret, become a joint occupier and so claim a qualification by having had to let to him by the landlord of his lodging s the exclusive use merely of an unfurnished room.

   For this reason I hold that the Rule Nisi must be discharged with costs to include L.P. 2 advocate's fee

(Sgd) Michael F. J. McDonnell, Chief Justice.

This note was added to the judgment by Mr. Justice Frunkin.  In concurring with the learned Chief Justice I would like to add that the interpretation  given to the meaning of "joint occupancy" and "joint occupier" and "joint occupation" in the sense that these terms do not include sub-tenants and lodgers, is also the moats suitable interpretation  corresponding to what could, to my mind, be the only intention of the legislator.

   The grant of franchise to sub-tenants and lodgers involves numerous questions, both of principle and technicalities which would normally have been dealt with in an enactment granting such franchise.  To start with a definition  as to who is a sub-tenant or a lodger: is there a difference to be drawn between occupiers of furnished and unfurnished rooms; is occupation for any given period at one particular place requisite for  obtaining the qualification of franchise; and finally what are the measures of control as regards persons who by the nature of the accommodation selected are likely to move about from place to place quite frequently: The absence of any particulars regarding these and similar questions in the Schedule to the Order of 1928 clearly indicates that it could not have been the intention of the legislator to include sub-tenants and lodgers in the term "joint occupier."

(Sgd) G. Frumkin, Judge.

Mr. Horowitz and Dr. Smoira represented the Petitioners in both cases, while Mr. Eliash represented the Respondent in the "joint occupancy" petition.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School