SUPREME COURT.

Dominion, Volume 7, Issue 2009, 17 March 1914, Page 3

SUPREME COURT.

THE EJECTION GF A COUNCILLOR. MAYOR'S POWER. CAN THE COURT NOW INTERFERE? If a municipal councillor makes a certain remark about tire Mayor at a council meeting, a . n -d i) sc J{ayar, after giving the councillor an opportunity of withdrawing tne< words, has him" removed by the police, and the couneil then suspends the councillor for a period can the Supremo Court interiors and sec aside the suspension? that is tho; question which the Chief Justice (Sir Robert Stout) will answer this morning, and is tho saustance of a case which was argued in the Supreme. Court yesterday. * The question arose out of a little trouble which recently broke in on tlie Unakuno Borough Council, At a meeting of the council 0 n February 17, .Coimci lor Alexander Herbert Wilkie remarked that tho Mavor (Mr. Thomas f £ . ann a Kiely) had allowed the clerk to jESs-step the accounts for twelve month* in the old Town Board days." the Mayor requested the withdrawal of these words, but Councillor Wilkie refused.. At a special meeting, held on February 23, from which Councillor \\ llkie was absent, a resolution to suspend him for oho meeting was made. Councillor Wilkie had aiot been notified that such a resolution would be brought forward. On March it Councillor Wilkie attended au ardinary meeting of the council, and was prevented by the Mayor from taking part m the proceedings, '.the Mayor requested Councillor Wilkie to withdraw but the latter refused to do so. Jho Mayor then sent for the local constable, but as the officer could not be found at the time, the council adjourned till the following evening. On resuming, the Mayor gave Councillor Wilkie' another chanco to withdraw his remark, and as the councillor still refused Constable Amiison was asked to remove him. The constable walked across to Councillor Wilkie and touched him on the shoulder, and Councillor Wilkie withdrew quietly from the chamber, lhe council then, further suspended Councillor Wilkie for fourteen days, irom March 4. There is a meotinw of tlio Ohakuno Council to-night, and' Councillor Wilkie is desirous of attending it. ■ . 11a states that ;m importantloan question, upon which the 'council is about equally divided, will be dealt with at the meeting, and -hat it is important to him and his electors that he should be present. Ho. however, feared that .the Mayor will not allow him to do this, and therefore he has applied to the Court far a writ of injunction to ■ restrain the council from preventing him from attending. Defence and Argument.' The Mayor and councillors defended the action. They claimed that they had acted legally, and that their resolution to suspend Coiwcillor Wilkie Was made in pursuance of the borough by;laws and the sfandingordors and forms 'of. procedure" of t-WKew'iSeatand House of Representatives. They allege that Councillor Wilkie .is lawfully prohibited from attending the meeting, but add ;that he. need not fear, the enforcement ;of the prohibition if he. withdraws his words. They allege, «tso f that the interests of his electors in the borough will not suffer if lie does not take,part in to-night's meeting, • ■ .- ■ Mr. T. F. Martin, with Mr. W. H. Tustin, of Raetihi, appeared for the plaintiff, and Mr. C. I'. Skerrett, K.G., and Mr. Fell for the defendants.

In the coursu of his a'ddress to the Court, Mr. Martin said that it would be a very serious thing to hold that a borough council could itself judge words spoken by one of its members tu bo disorderly, and take the extreme step of having him removed by police, ami excluded from meetings. That would mean an exercise of power which might lead to great abuse. Ha contended, also, that Councillor Wiilde's remark toithe Mayor was "justified criticism*"

Mr. Skerrett trusted that, the Court would not do anything to weaken tho •authoriy of the Mayor in his council. Counsel submitted two points: (1) The Mayor was within his rights to finally ami conclusively determine that Councillor AVilkie had boen guilty of disorderly conduct; (2) this conduct' was fu point of fact disorderly, and was calculated to bring the atrthofity of tho Mayor over tho council into contempt. .Continuing, Mr. Skerrett said that the borough by-law stated that the ruling of the Mayor was final on points of order and practice.'

His Honour: I do not know that I have power to consider whether this conduct was disorderly or not. Tito only thing, perhaps* that I gan do. is to consider what was done.

Mr. Skerrett went on to contend that the remark made by Councillor WilKie at the first council meeting concerned was quite irrelevant. However, instead of- accepting the opportunity of putting himself right, with the chair bv withdrawing the words, Councillor Wilkie contumaciously refused to apologise. Further, where the borough bylaws contained i'ia express, provision, matters were left to bo decided according, to Parliamentary procedure, and a reference to the proe.esrure of the House would show that tho Mayor acted within his rights. Moreover, there was an inherent power in every deliberative assembly to expel .as member wlto disregarded the authority of the chair. The position of Councillor 'Wilkie was that lie could attend the council, if he withdrew, his words.- "But,"' continued counsel, "a plaintiff who comes it to n Court of equity must, come' hero v.ith clean hands. Councillor AVilkie tenses here as a contumacious person." Mr. Skerrett contended, in conclusion, that the jurisdiction of the Court to grant an injunction was limited to property. "Sue for Assault." Mr. Martin maintained* that the remarks of Councillor Wilkie on the occasion in question were relevant j. : the council, he said, Was gradually drifting into a discussion of past matters. His Honour: What is it yon are afraid of? Is it assault? . What is it you want the injunction against P Mr. Martiii: Wo have been, assaulted already. His Honour: Is there any injunction against assault? Suppose he weut again to-morrow night and ho iwc assaulted, ho can sue- for assault. The point is this: Do you know of any injunction having been granted, for assault? Mr. Martin: Wo submit that our statutory rights should be enforced. His Honour said that last session a member of Parliament was prevented from finishing a speech in the House.. Could the Court say to the Speaker: "You shall not prevent him from fniisTiing it"?

Mr. Martin: The High Court of Parliament is above the Supreme Court, Your Honour.

His Honour: Is it .not that you want an order to the. Mayor to hear Councillor Wilkio and allow him to bo present? ... I would like yon t» give mo any authority where there has ever been an injunction in a case of this kind.

_ Mr. Martin: ft is submitted that Your Honour cannot jgtiore tlie facts which have been proved in this ease. His Honour: Why eouid he not have •'ted the constable?

Mr. Martin: Or the Mayor? Mr. Skerrott: Yes, 1 or the Mayor? .Mr. Martin: Wo say wo haro .1 rwnt, and that the Court will respect that right. llis .Honour: If you arc deprived -of ilint n<jlit -'what is your reajedy?' Ml'. Martin: To have .111 imimction to compt! the Mayor to icspsct that right.

His Honour: That may bo so, iji.it 1 am not, aware of any authority. # Mr. Martin: A mandatory 'injunci°n- .• . . .There is n -'tittle 'das-

t'cily in grunting an injunction. No liarm can bo done. _ His Honour: It is not a question of Harm; it is a question of power. Mr, Martin: 'fli-era is no power of suspension.

, His Honour: It may bo that I would had that there is no power of suspension, bat also that there is no power of injunction. ' Mr. Skerrett: I- desire to point out that an injunction is sought not onlv so that ho 'shall bo allowed to attend the meeting, but also that ho shall bo allowed to vote at it. His Honour: I have no power ta order that, Mr. Skerrett; I do-sire to taho theobjection that it is not a right of property, and' that, therefore, there can be no injunction. ; His Honour said that be would give judgment this morning.