The Akaroa Mail. TUESDAY, AUGUST 27.

Akaroa Mail and Banks Peninsula Advertiser, Volume 3, Issue 220, 27 August 1878, Page 2

The Akaroa Mail. TUESDAY, AUGUST 27.

An election of three persons as Municipal Councillors for the Borough of Akaroa will take place on Thursday, Sept. 12. Concerning this election, a question has arisen as to who are the three Councillors wlio shall retire, and as the case is likely to form a precedent for future occasions, it is, perhaps, as well that Avhat is done should be done correctly. Section 64 of the " Municipal Corporations Act" runs as folknvs :— " 64. On the second Thursday in September in each year, in the case of an undivided borough . the three Councillors who have then been longest in office without re-election. . . ... And if any two or more Councillors have been in office for equal periods, those who at their election received a lesser number of A-otes shall be deemed to have been longer in office than those who received a higher number; and if any such Councillors have received an equal number of votes, the Mayor shall decide the matter by : lot in the presence of the Council." Now, if all the members elected last SeptoLuber were still members of the Council, the three who polled the lowest number of votes on that occasion Avould unquestionably retire, but, as will be remembered, one of the Councillors, Mr Wagstaff, resigned his seat a few months ago, and Mr 0. W. Bridge was elected to fill the vacancy. Now, it appears that Messrs Wagstaff and O'Reilly polled an equal number of votes, and therefore the question as to which of them should retire Avould have had to be decided betAveen {hem by lot. It has been assumed that as Cr Bridge Avas elected to fill a vacancy caused by Mr Wagstaff's retirement that, therefore, he steps into the same position in regard to this election that would have been occcupied by tho latter. We can find nothing in the Act to ay arrant such an assumption. Sections 04 and QQ are the only ones bearing on

the point, and they distinctly lay down that the persons to retire shall be (1); the three who have been longest' in office, or (2) the three who. polled the least, number of votes. We cannot see that Cr .Bridge comes under either of these two headings.

It is somewhat'singular that a very similar case has just occurred in Wellington. It appears that last year there was a general election, owing to the city having been re-divided into wards. In one of the wards three candidates were returned in the following order :—Moss, 1 ; Mills, 2 ; Allan, 3, Daring the ye tn* Mr Mills resigned his seat, and a Dr Diver was elected to-fill the vaoancy. The question now arises who is to retire —Dr Diver or Mr Allan ? The Town Clerk holds that the former vacates his seat, apparently on the ground that Mr Mills' resignation, gives Mr Allan a step upward, and that Dr Diver, being junior member, should retire. The case being referred to the City Solicitor, Mr Travers, he has given an opinion on a side issue, which appears to have taken everyone by surprise, to the effect that a Councillor cannot resign his seat. Holding this opinion, he declines to give a decision on what he calls the " very difficult question," as to who should retire, believing as he does that Dr Diver's election was a nullity. We subjoin Mr Travers' opinion :—

" With regard to the difficulty which has arisen in connection with the retirement of one of the Councillors for Lambton Ward, the following legal opinion Avas received by the Town Clerk on Saturday afternoon : (Memorandum for Town Clerk.) 17th Aug. 1878. I was somewhat misled by the terms in which the question was put to me, as to whether Dr Diver or Mr Allan should retire from the Council for the purposes of the forthcoming election. The facts I understand to be as follows :—At a first general election Avithin section 66 of the Municipal Corporations Act, 1876, Mr Mills was, amongst others nominated as a candidate for one of the wards, his name being then on the roll although improperly so. He was declared duly elected, and was sworn in as a Councillor, and sat at several meetings. Under these circumstances, I am of opinion that Councillor Mills' election could only have been impeached under the second part of section 50 of the Regulation of Local Elections Act 1876, Avhich was not done. Mr Mills, however, in view of the penal clauses of the Municipal Corporations Act, resigned his seat, and thereupon an election Avas held as if an extraordinary vacancy had occurred. It is to be observed, hoAvever, that no poAver of resignation is given by the Municipal Corporations Act, and therefore the office held by Mr Mills Avas not properly vacated. Under these circumstances, I am of opinion tbat Dr Diver's election Avas a mere nullity. A similar difficulty existed under the English Municipal Corporations Act, until amended by the 9 and 7 William IV., c. 104, section 8, by Avhich latter Act provision Avas made enabling councillors to resign their offices. No doubt, under tho Municipal Corporations Act, 1876, Mr Mills' office may be treated as vacant in- consequence of his having been absent from four consecutive meetings of the Council without leave of the Council, but until some formal step has been taken to treat his office as vacant, I am of opinion that, his election not having been impeached, he must be deemed to be a Councillor for the purposes of the coming election. In view of this opinion, I think it unnecessary to inquire into the very difficult questions which Avould arise under tbe Regulation of Local Elections Act, as between Dr Diver and Mr Allan, if there had been a power of resignation in the Municipal Corporations Act. Wm. Thos, Locke Travers, City Solicitor."

It Avill thus be seen that the matter is not quite so simple as might at first sight appear. We think that the duty of deciding the matter rests upon the Be turning Officer, and if lie feels any doubt on the mutter, he should be empowered to obtain legal advice. In any case, three Councillors retire, two of whom are Crs Penlington and Cullen. It behoves the burgesses, therefore, to take steps in time to secure the services of some suitable persons to fill the vacancy or vacancies. We arc given to understand that Cr Cullen does not intend to offer himself for re-election. Since the above was in type, Aye learn from our Wellington exchanges that the Mayor of that city takes the same view that we have expressed as to its being outside the province of the Council to decide the question at issue. In answer to a question on the subject— " The Mayor said theso were questions Avouch were to be settled by paid officers of the Corporation, aud he would not now or at any other time take those duties into his »wn hands. He would simply tell the Returning Officer to be guided by their solicitor."