ELECTION PETITIONS

Dominion, Volume 8, Issue 2435, 14 April 1915, Page 7

ELECTION PETITIONS

INTRICATE LAW WHEN IS A PETITION IN TIME? IMPORTANT QUESTION fOINT WHICH MAY SETTLE TWO CASES. . Us Speoial Court of Judges which 19 to decide, some important questions of electof&l law t!hat affect the several Partly-heard elections petitions continued. its session yesterday. Argument was concluded on the .question of whether the rolls are conclusive as to the right to vote Or whether the Election Court can disallow the votes 6f certain persons who have b6ea enrolled. That is a problem in tfhich the Taumarunui and Hawke's Bay seats are concerned. The questions now heang discussed are. whether the Tau mairunui and Bay of Islands petitions were presented iii time to secure them the right of hearing of the Election Courts. If. of course, this Special Court decides that the .petitions were late, the hearing of those particular Cases will not bO resumed by tho lileotida CoUrts. The Judges who compose the Court are their Honours the Chief Jiistioe (Sir Robert Stout), . Mr. Justice Edwards, Mr. Justice Cooper, Mr. Justice Chapman,.and Mr. Justice Hosking. The Rolls Problem. When the Court sat the question of the conclusiveness 6r otherwise Of the rOlls was proceeded with. Mr. C. P; Skerrett, K.G., who appeared for Mr. it. M. Campbell (who petitioned against the return of Dr. 51' Nab for Hawke's Bay), resumed 'he line of argument Which he had pursued for some time on the opening day. The question which hb had to assist the Court to answer .was: ■

""Whether if a vobet's same is without fraud or wilful misconduct placed on the subsisting roll as an elector, although, he did not possess the necessary qualifications, or is without fraud or wilful miscon-. duct retained oi the roll although he had since bfiihg placed on the roll l6st or fdrfeitea. his residential qualification, the Election Court can under Section 196, Sub-section . (f) of the Legislature Act, 1908) disallow his voKi at tho filectiouP" Contending that the roll was conclusive, and that lie Court could not go behind it, Mr. Skerrett submitted that the . answer to the question should be •'No." Mr. Skerrett said that in the HiWke'S Bay case a number 6f names on the roll which were objected to were names of persons not resident in the district whioh were put 04 the foil by the 'Registrar. Sub-section of Seotidri 44j. of the 1908 Act, said: . "A person who is registered in any district shall nojt be deemed to have'left the district and forfeited lis qualification therein by reason only of absence fr6m the district, unless he becomes registered in aiiy other district." This-showed, said Mr. Skerrett,' that a person was entitled to retain his name to the roll though he did not possess residential qualification. This provision Jwas in the 1893. Act,, and then it was incontestible that it did not apply to original qualifications, but to removals. Mr. Justice Cooper observed that if Mr. Skerrett's construction of the subjection was correct an extraordinary (position would be created: it would be possible for a man to be on tiyo rolls. Sad Mr. Skerrett said the rolls were conclusive. If such a position were possible, could the roll be said t6 ba (conclusive ?

Mr. Skefrett declared that the answer jnust be "Yes." t Mr. Justide Cfloper: Well, .that would ■fcreate an extraordinary position. Mr. Skerrett replied that whichever jwajr Section ii was construed it would not do. away with inconvenience. Section '44 did not raise a question of qualification for enrolment, but of removal ihfOugh loss of qualification. ; Mr. justice Cooper: We are at war with Germany, and if an alien, an unnaturalised German, got on the roll, you say he would be entitled to vote. _ Mr. Skerrett: Yes, because the roll is fconolusive. Mr. Justice Cooper: Is not such k position the kind' of thing which it was intended should be prevented? Versatility of the Bar. Mr. Justice Cooper remarked, that ,the points now under review had never before been argued, but Mr. Skerrett is aid that they had some years ago been jatgtoed before "the Chief Justice and Mr. Edwards, on which occasion ho ;(Mr. • Skerrett) had argued the case jwhich Sir John Firidlay was now preIBenting, and the Hen. H. D. Bell nad opposed him with a similar line of argument to that which Mr. Skerrett waß 2K>w a6king_this Court to adopt. Mr. Cr. P. Finlay said that in the jTaumarunui case the validity of a batch of about 300 voter was questioned. In idme oases the enrolment claims were not signed before being attested. • Mr. Justice Edwards: If they were fiat signed, I should Say "no elaim." Mr. Finlay argued that these Te Kuiti voters having obtained enrolment .the Court was powerless to disallow 'their votes.

Mr. Justice Chapman said that the iWakanui case did not deal with the Tight to vote. The whole effect of .that decision was that the Election Court could not inquire into a man's light to vote'. But a man might go to the poll, not necessarily with a consciousness that he had a right to vote, and evdn knowing that he should not yote, and yet exercise the franchise. , Mr. Finlay: Yes, if he is on the Toll, he is entitled to vote. 1 Mr. Justice Chapman: No, not necjessarily entitled to vote: but lie votes. ' Replying,. Sir John Findlay contendied that surely the plain i>osition was that where a statute provided that a ■man should not be on a roll of people entitled to vote that man should liot be allowed to exejwise a vote, lie evils which would arise if the roll was jconolusive would be ten times greater .than any evils which would crop up allowing the Election Court /to investigate the legality of votes, and nothing would more effectively defeat Mie fairness of elections than the making iof rolls conclusive where there WerO dishonest or careless registrars placing on the roll names which had no right to be there. Such a position would work grave injustice, and, may be, to an extent sufficient to turn the 'scale of- elections. THE TIME LIMIT. r AF„E TWO PETITIONS LATE? That concluded the argument of the first question, and the Court passed on to deal with the questions as to whethorfhe Taumarunui and Bay of Islands petitions had been presented in •time. The Bay (,f Islands case was gone into first. Mr. C. P. Skerrett, K.C.. Mr. J. R. Roed, K.C., and Mr. R. Kennedy appeared for the resnondMt in thfe case (Mr. Vernon Reed, whose return was sfiught to ho upset). Sir John Findlay, K.C.. and Mr. P. tevi represented the petitioner. Mr. Skerrett opened the argument, and his was that the petition was Mr. Skerrett said that the matter fceforo the Court was on« concerning a

lcotion to remove from the file the petition against the return for the Bay of Islands seat of Mr. Veruon Reed, the Reform candidate. The ground Of the motion was that the petition was not lodged within the time stipulated by tho Act—

". . . . Within 2S days aftor the day on which the returning officer has declared a candidate to be duly elected."

Although in the Taumarunui case, ho said, ths question arose <is to whether or not that petition was in time, the question arose from very different ground to that relied on in tho Bay of Islands case. Mr. Skerrett went on to contend (respecting the Bay of Islands case) that the 28 days' period must be counted from the date of the publication of the declaration, or from the return of the writ, even though a recount may have altered slightly the total number of votes receivod by various candidates without in any way altering the.return of a particular candidate. In the Bay of Islands esse the recount made very slight alterations in the numbers of votes credited to tho candidates, and the position of Mr. Heed at the head of the poll wis not materially affected. The Bay of Islands motion rested On a stronger ground than the' (notion in the Taumarunui case.

Mr. Skerrett set out the dates with which the motion was concerned as follow',—

The election was held on December 10. 1914. The public declaration of the result of the election, and the endorsement of the writ, were made on December 16. The advertisement containing the public declaration of the result of the election was dated December 16, and published on December 18. The reason for the two days' delay WaS that the local paper was issued only twice weekly. Publication was made in the earliest possible issue. There was an application for a recount on December 19, 1914. The recount'was held on January 6, 1915. ~ , An advertisement purporting to 00 an amended declaration was made on January 8, 1915. _ The potition was presented on iebru--I*he recount merely altered the return thus: Mr. Reed's number of votes Was reduced by one; Dr. Buck's increased by two; Mr. Wilkinson's increased by one, and the informal votes were reduced by two.

Dunedin Central Quoted. Mr. Skerrett's contention was that the important snd material part of tha declaration waS the declaration that a candidate had been duly elected. It was submitted that the figures showing the votes received by each candidate were for the public information only, and that the gi'avaiiien of tho declaration was that a certain person had been duly elcoted, , , Mr. Justice Cooler: For the public only? „ , . Mr. Skerrett: No one else is concerned. , „ Mr. Justice Cooper; The candidate? Mr. Skerrett: Well, for the publio and the candidate. Mr. Justice Cooper: I suppose what the candidate really wants to know is who is elected. • Mr. Justice Chapman: Or if he has forfeited his deposit.

Mr. Skerrett said that Section 47.. Subsection 7, 6f tlie Act of 1910 stated that the Returning Officer should ascertain the number of votes received by each candidate, and publicly declare the reBult of sUch poll. If, after a declaration, a recount was taken, no further action was taken -unless another candidate was found to be elected. He read the following statement by the Chief Electoral Officer (Mr. James Hislop) of the course puralied 'in'the Duncdin Central case:—"The following is a correct statement of the practice adopted where a recount has been applied for and made under Section 147 of the Legislature Act, 1908, narnMy: "(iO If upon such recount it is ascertained that the same person was elected as the person whose name appearß endorsed on the writ transmitted to the Clerk of the Writs, then the writ is not returned to the Returning Officer, even although on such recount the total number of votes received by each_ candidate as disclosed by such recount differs from the total number of votes received by each candidate as disclosed by the count and the Returning Officer's public declaration of the result of the poll.

"(ii.) If upon such recount it is ascertained that some candidate whoso name has been endorsed upon the said writ transmitted to the Clerk of the Writs is declared elected, then the writ is returned to the Returning Officer, who endorses thereon the name of the,person declared on such recount to bo elected in lieu of the name of the person originally declared to be elected, aud whose name was first endorsed on the writ.

"This practice was followed in the oase' of tho election for Dunedin Central, in which- election, by the Returning Officer's count and his declaration Of the result of the poll, one Munro was declared duly elected, and his naiiis ffas endorsed on the writ and transmitted to the Clerk of the Writs, and on the recomit the other candidate at such election (one Stathatri) was declared to'be elected, whereupon the said writ was returned to the. Returning Officer, who endorsed a fresh c return, namely, the name of the said'; Statham, • in lieu of the name of the Baid Munro." The Chief' Justice suggested a case in which the recount brought the third man up to second place. Previously that man (being third) would have thought it useless to petition against the return of the first man. But after he liad taken second place, he might, desire to petition. In view of Mr* Skerrett's argument, His Honour asked: Would that man's petition be late?" Mr. Skerrett: Yes. In view of the decision in the Wairarapa case, Mr. Skerrett submitted in conclusion, the Court must find that, the petition had not been made in time. . The Stery of the Statutes. Mr. Reed, who followed Mr. Skerrett and supported his contention, devoted a good deal of time to a review of legislation antecedent to the latest enactments, bearing on the question at issue. He said that in 1862 there was an Election Petitions Act which provided for petitioning within one month of the declaration of the state of the poll by the Returning Officer. The next Statute dealing with the question of petitions was the Election Petitions Act of 1880. That Act mado a provision that an objection should be presented within 28 days after the day the Returning Oificor had declared a candidate tr> he duly elected. That section had been continued through various Acts right up to the present time, and tho actual wording of it had not been altered. Until 1902 t'he electoral law was in two branches—the Regulation of Electors Act on the one hand, and tho Election Petitions Act on the other. In 1902 the two measures were consolidated. At the timo that tho Election Petitions Act of 1880 was passed, elections were regulated under a statute of 1870. The next statuto regulating electors came in 1881, and Section 45 of that Act, regarding tho declaration of the poll, was very much the same as the later provisions. Even the twenty-eight, days' for petitioning in was required to date, not from tho public notice of the number of votos pclled. hut from the date of the declaration as to who was elected. The next, statute was t.he Electoral Act of If?!),"!, under Section 120 of which the Wairarapa case was decided. Tlip. case occurred about four rears after the passage oF th* Act. The recount provision cam 9 in 1902, and as there had for a low. beta a. tims'liuit in,

whicih to petition, the statute should state in very clear language any intention to extend indefinitely tho time allowed in whidli to petition. Mr. lieed submitted that the reoounfc had not altered tho positions of the candidates, and that the public declaration of Dccembor 16 stood, and, therefore, the petition lodged on February 3 had not been presented within tho twentyoight days prescribed. The Court stands adjourned till this morning at 10.30 o'clock.