UNDER WHICH COURT.

Dominion, Volume 2, Issue 444, 1 March 1909, Page 2

UNDER WHICH COURT.

$ LICENSING FOLL INQUIRIES. THE NEKD FOR REFORM. (BY 11. H. Ostlkh.) 111. The most dangerous factor in tlio whole of the judgment of the Court which conducted tho Hutt inquiry was the attitude adopted by tlio Court towards tlio "freo beer" allegations, which wero proved. From Dr. JI 1 Arthur's treatment of the witnesses it would appear that ho regarded "freo beer" oxactly as he would liavo regarded "free tea." Remembering that the easo in hand \yas a License case, and that beer is generally recognised as a more potent influence in elections than tea, tlio jests of tho presiding Magistrate were surely ill-founded. Compare tlio respect paid to tlio statement of Mr. Southeo with that paid to the Rev. Williams. It was proved by the petitioners that Southeo drove a brake up tlio lonely valley of Akatarawa, where thero was a polling booth, and that ho drove voters to the booth. In his brake he had a quantity of alcoholic liquor, with which lie treated voters. Only 38 votes were recorded at that booth, and about tho samo number were recorded at tho 1905 poll; but whereas in 1905 there was a majority of votes for No-License polled there, in 1908 the Continuance votes were almost two to ono. Southce was called, and said that he bought the beer himself the night before the election to take pig-hunting, and that after ho had bought it lie was engaged to drive the brake. Ho admitted, after much pressing, that he knew he was engaged to drive it for tho Liquor party. His agency was therefore clearly established. In tlio faco of this evidence the Court said: "There is no ovidenco whatever to connect tho Trade with tlio beer which a man named Southeo had in his express at Akatarawa when driving voters to the poll. This in our opinion had no influence on tho poll.' 1 It was also proved conclusively that m tho stables attached to tho Provincial Hotel thero was a quantity of liquor, and free drinks were given oil election day; that a number of men were drinking there, and that at least one was drunk. Naturally no evidence could bo adduced beyond tho fact that tho stables were tho hotel stables to connect this liquor with tlio hotel. Tho licensee of the hotel was called, and he stated that tho stables were not his, and denied all knowledge of the liquor. 11l crossexamination he admitted that tho stables, belonged to the hotel, but stated that eighteen months ago he had let them on a verbal weekly tenancy to a man named Edwards. On this point tho Court held that an irregularity had been proved, but proceeded to say, "Tho stable does not belong .to the hotel, having been leased some eighteen months ago to tho present lessees. Thero is nothing to connect this treating with the Trade, or to show that it had any influence on the poll." A WRONG PRINCIPLE. In tho Akatarawa case, tho • connection with tho Trade was proved. In tho hotel stables case, the Magistrates held that tlio verbal weekly tenancy completely cleared the publican of all responsibility, but tho point is this, that while tliey held that an irregularity had been committed in the case of the stables, and apparently also in tho Akatarawa case, they absolutely stultified the provisions of tlio Act under which they were acting by holding in effect without 0110 word of statutory authority that unless tho Trade could bo conncctcd with the distribution of the liquor by tho evidenco of tho petitioners, then, however grave, such irregularities might be, they could not be taken into consideration as a factor ii\ upsetting tlio poll. J.n other words, the Court held that tho petitioners must prove (1)' Tlio distribution of free liquor; (2) that it • was distributed by the Trade;.and (3) that it affected the result boforo they could hope to succeed. If the Court had held that it had 110 jurisdiction to inquire into allegations as to tho free distribution of liquor, then, on this point, thero would be nothing to say, except as to llie need for new legislation, for it was an arguable point whether under' the Act as it stands they had such power. ]3ut the Court held that the distribution of liquor was an "irregularity," and therefore it had jurisdiction. Having held that, it is submitted that it wholly failed in its duty, first in requiring proof from the petitioners that the liquor was distributed by tho Trade, and secondly by requiring proof from, the petitioners that tho freo liquor affected the result.

In all the other allegations as to free liquor which wero proved, the Court acted on the same wrong principle. It was proved that a quantity of liquor was, on the day of the poll, carted from a hotel to a shed quite close to the Wallacevillo booth, where it was consumed by electors during the courso of the poll. One Edwards was called, who deposed that lie was so grateful at having been elected a county councillor somo ton days beforo tho election that ho decided to treat his electors with liquid refreshment. It was an extremely curious coincidence that this generous intention was not carried into effect until tho day of tho poll, and oven the Court characterised it as unfortunate, at tho salno timo repeated tho wrong-principled refrain, "that there was no evidence to show that the distribution of this liquor tended to influence tho poll." BEER FOR "WORKERS ONLY." It was also proved that tho publicans at Lower ilutt took an empty siiop next to tho polling booth and actually in tho samo building, and into it oil election day conveyed a barrel of beer. Naturally it was,difficult to get ovidcnco of what went on inside that shop, but ono man was produced—a respectable farmer—who had beeii inyited into tho room by an employee of one of tho publicans and given a drink during tho course of tho poll. At least two reputable witnesses swore that they had seen a number of men go in and come out later wiping their mouths, and one witness stated that ho had seen a publican stand at the door and beckon to a number of men over tho road; that tho men went into tho room, and camo out shortlv afterwards, alsa wiping their mouths, 'l'ho witness who deposed to having a drink there stated that tlicro was nothing in »tho room 1 ' but a barrel of beer and somo glasses. To meet this statement several publicans wcro ' called, who deposed that tho beer was placed there solely for workers at tho election. Ono hotelkeeper sworo that the door was kept strictly locked except when ho was there, and that he kept tlie key all tile day, except once, when ho handed it to another publican, for a short time. Another witness was callcd for tho respondents, an ex-publican, who swore that he got tho key from Publican No. 1 during tho day. Thus Publican 'No. l's oath that lie only gavo the key. to Publican ' No. 2 was discounted by his own witness. Again, the witness who procured the drink in tho room swore that there was no one else there at the time but himself and tho publican's employee. That was another contradiction of Publican No. 1. One would imagine that a Court of Justice would be chary of accepting evidence of that character. But tho Hutt Court did not deign to notico the evidenco of the farmer who procured a drink of which .no. contradiction or explanation was oven attempted, and they dismissed the whole allegation ill tho following words:—"Wehold that tho wliolo weight of ovidence was that tho beer was for workers only. Tlicro was nothing to show that it in any way influenced tho poll." ANOTHER QUESTION OF PRINCIPLE. Tho costs of tho inquiry were in the discretion of the Court, but that discretion was of course a judicial discretion, and should liavo been exercised on legal grounds. In the Islington case, which tho Court quoted as the guiding principle, the question of costs in election petitions was also authoritatively dealt with.' It was thero held that wlicro the petitioners proved irregularities in tho conduct of tho election, even though tliev did not aifect the result and tho petitioners did not succeed, they were entitled- to tho costs of all the irregularities which they proved. Mr. Atkinson [Minted this out, citing tho case, and asked that the costs of all proved irregularities should bo allowed the petitioners. Dr. M'Arthur intimated that the Bench had already agreed on the costs (without hearing any argument whatever), and had fixed them at 50 gujneas and expenses. It is not the injustice of tho amount but the injustice of tho manner in which it was fixed to which exception is taken. In a

Court of Justice "tho just thing must bo dono in a just way," to use the words of tho lato Mr. Justice Richmond. The Court refused to follow the precedent of the Islington case, (which it professed to rely 011), because it had already fixed the costs the petitioners would have to boar without hearing them in their own. defence. But this is not the worst. The respondents had lodged a countcr-peti-lion, and with it, in accordance with tho Act, had deposited £20 to abide the result. They abandoned their petition and called 110 evidence 011 it, although the petitioners had been put to the expense and trouble of working up a defence to it, but tho Court refused ta grant any costs whatever against tho respondents 011 that account. In all Court proceedings where there are cross-actions, or a claim and counter-claim, and both fail, it is the rule to set off tho costs of one against tho other, and something ought to have been allowed as a set-off against the 50 guineas. But then came the most extraordinary part of all: tho Court, directly in tho faco of the most express words of an Act of Parliament, ordered that the £20 which tho respondents had deposited with the petition, which they had abandoned, and therefore failed to prove, should bo refunded. By that decision the Crown was illegally deprived of £20. Section 36, Sub-section 2, of the Licensing Act provides that, subject to any order as te costs, "tho Court shall direct that tho deposit accompanying any petition .... shall bo returned to the person who paid tho same, unless the Court is of opinion that the petitioners have failed to establish tho grounds specified in their petition, in which case the deposit shall bo forefeited to tho Crown." Seeing that the . respondents had absolutely abandoned their petition, the Court must have been of opinion that they had failed to establish its grounds, in which case their duty was clear; To return the deposit undor these circumstances was contrary te law. The same' Court had already allowed the petitioners in tho Suburbs case (a liquor party petition) a similar refund, and they apparently thought it right to follow tlioir own wrong precedent.

A FURTHER COMPARISON BETWEEN HUTT AND NEWTOWN. I'inally, lot us compare more closely tho Hutt caso with tho Newtown case. Tho cases are strictly analogous. In tho Newtown case the No-Licenso party wero 4 ahead, and tho Liquor party were tho petitioners, whereas, in tho Hutt ease, the Liquor pary wero 3 ahead and tho NoLicenso party were the petitioners. Though' the Newtown caso was dccidcd under a different Act, and by Dr. Jl'Arthur alone, yet the samo principles of law wero held to be applicable to both, and tho Islington caso was invoked in both decisions. However, there was 0110 important difference. At tho time of tho Newtown caso thero was absolutely 110 provision if a poll wero voided for holding another poll, and tho upsetting of tho Newtown poll involved the thwarting of the decision of the triumphant party for at least three years, whereas, under the present Act, if a poll is voided, another poll is held within 40 days. Remembering these points, let us seo what the irregularities were upon which Dr. Jl'Arthur reversed the decision of the Newtown electors by voiding the poll. The irregularities were —and 1 am quoting now from Dr. M'Artlnir's own judgment—the following:— "(a) At the Brooklyn polling booth the voting papers for electoral and licensing purposes were not given out simultaneously for a period of three hours."' (The evidence on this point was that no one, to the knowledge of tho officers, was thereby deprived of a vote.) "(b) At tho Brooklyn polling booth, oil different occasions, there were more than 6 voters in the booth at the same time/' (There was never an election yet in which this did not occur, and tho evidence was that no harm was done by it in that case.) "(c) Tho representative of tho No-License League was allowed to go into several booths on different occasions." (The evidence on this was that it was with the permission of tho Returning ■ Officer; in order to speak to his scrutiuotfs'; t'liat- lie' weiit into three booths ; and though this was a technical breach, it. ' proved' that"'ho spoke to any one but his scrutineers and to noe deputy.) "(d) At Brooklyn the papers were not mado up and sent to the Returning Officer until the following day. "(e) One elector's namo was wrongfully struck off tho roll. "(f) Threo names still remain • subject if called on to a scrutiny." These wero tho whole of tho irregularities of which thero was any evidence. What did Dr. M'Arthiir do under these circumstances? He acted very differently from the Court in tho Hutt case. He did not go through each of the items categorically and state that in the opinion of the Court there was no evidence to show that it had any influenco on the poll." He did not even examino or comment upon the evidence of-, fered under those heads. He took them cumulatively as set out by himself, and what ho did was to apply the principle of tho Islington caso in the following words:— Looking, at the law of elections and tho particular circumstances of this election more particularly the closeness of the result in my opinion it is open to reasonable doubt whether these irregularities may not havo affected the result, and it »s uncertain whether No-License has been carried bv the required majority. That being my opinion, 1 am bound to declaro the poll void " _ A very different principle was acted on in tho Hutt case. Instead of being takoi; together, each proved allegation was frittered away separately, and to each separate charge that was sheeted home, Dr. M'Aiv thur, m delivering judgment, voiced tho chorus of the Court—"in our opinion this irregularity had no iniluence on the result." TWO SETS OF IRREGULARITIES. Now, remembering that in each caso the result was equally close, let us compare the irregularities alleged and proved in the one case with those in the other. Taking them in backward ordei from (f) to (a)— (f) Three names subject to a scrutiny in each caso (e) Whereas one elector's namo was wrongfully struck off the roll at Newtown, three electors were wrongfully deprived of votes at the Hutt through irregularities in tho preparation of the roll, and ono of thera wrongfully struck off the roll. (d) Whereas from ono booth only at Newtown the papers did not reach tho returning officer until tho following day, in tho Hutt caso it was provod that tho papers n m t no , - less than '! out of tho 15 booths, all of which were within easy reach by train or road of l'etono, did not reach the returning offioer until tho next day, after being left all night in empty booths and in privato houses. (c) Whereas in the Newtown caso the secretary of the No-License League was proved, with the leave of the returning officer, to havo gone into threo booths and to havo there spoken, to his scrutineers, in tho Hutt caso it was proved that a publican, the president of tho Licensed Victuallers' Association, went into two booths during tho course of the'poll, taking alcoholic liquor into each, and that ho spoke to tile officers in one booth, tolling them that there was liquor at the back of tho hall for them. Besides that, it was given in evidence that another publican handed in liquor through tho window of another, booth, but this evidence was rejected by the Court. (It) AVhoreas the evidence at Newtown was that tlioro were on several occasions more than six porsons irt the Brooklyn booth at tho same time, it was proved at tho Hutt that at one booth where 17-1 electors voted there was no inner compartment, and the ballot was not conducted with secrecy. (a) To counterbalance the irregularity of the papers in 0110 booth not being given out simultaneously for three hours at Newtown, an irregularity which it was shown by the evidence had 110 effect 011 the result and could not have tended to defeat the fairness of the poll, it was proved at tho Mutt that a publican's son, in direct violation of the law, drovo a car about all day, taking voters to tho poll, 011 which thero was fastened • large placard representing a working man holding up a pot of beer, and with tho word "Liberty printed 011 it. 1 Thus,'for every irregularity proved at Newtown, a similar irregularity, only 011 a vastly 111010 serious scale, was proved at tho Hutt. 11l addition, it was there, proved that frco liquor was distributed at Wallacevillo, at Akatarawa, at Upper Hutt, and at least to one voter at the Lower Hutt. At Wallaceville and Upper Hutt the distribution wasj

on a liberal scale. It was proved that dur injr the official count the Returning office, absented himself for a considerable period— at least three-quarters of an hour —and thai during all that tinio the papei'3 were being handled by hir. assistants. It was proved— and could not be denied—that 24 _ ballot papers had been counted for Continuance which all contained valid votes for Rcduo lion and No-License; that two perfectl] good votes for Reduction and No-I;icens< had been placed amongst the informal votes/ and that in two other instances mistake! had been made in counting—both in favoui of tho Liquor party, whereas no mistake! had been niado in favour of tho No-Licenss party. It was proved that tho returning officer dur'ng tho course of the poll mads what the Court called an "injudicious," and what Mr. Skerrott called a "crossly improper," remark in the hearing of a votor and of a scrutineer (who was also a voter). Yet at Newtowq ])r. M'Aithur, taking cumulatively tho minor that were proved, and remembering parlicujarly "the closcncsS of tho result, 1 ' says, "it is open to reasonable doubt whether these irregularities may not have affected tho result," and ho voids the poll. In the Hutt case tho same gentleman in delivering the judgment of the Court, takes the proved irregularities separately, whittles them away one by one,, and dismisses the petition with heavy costs. After a comparison of these judgments, one is driven to tho conclusion that questions of such vital importance shoula be. taken out of the hands of Magistrates,, and placed in tho hands of a Court which haß respect for, and is bound by, its own procedents. (Concluded.)