ELECTION PETITIONS

Dominion, Volume 8, Issue 2436, 15 April 1915, Page 6

ELECTION PETITIONS

PROBLEMS IN STATUTES • lIME-LIMIT FOR LODGING OBJECTIONS TWO SEATS CONCERNED WHEN IS AN ELECTION DECLARATION MADE?

' Yesterday the Special Court of Supreme Court Judges concluded tho hearing of argument on the law points raised in the Taumarunui, Hawke's Bay, and Bay of Islands election cases. ■In the Tauinaxuhui case, Charles Kendall Wilson, the Reform candidate, petitioned against the return of William • Thomas Jennings,. tho Wardist nominee; respecting Hawke's Bay, Hugh M'Lean Campbell (Reform) claimed the seat to which. Robert M'Nab (Wardist) had been.declared elected; and respecting. Bay of Islands, Te Rangihiroa • (■Wardist) petitioned against the return of' Vernon' Reed (Reform). The first of the law points referred to the Special Court was the question of whether an electoral roll is conclusi;eas to right to vote, or whether an Election Court can disallow the votes of persons whose names have been wrongly placed on a roll, in which latter: event rolls are not conclusive. This problem, in electoral law was discussed on Monday and Tuesday. It affects the •Tauniarunui and Hawke's Bay cases, and the proposition that rolls are conclusive was advanced by counsel for Messrs. Jennings (Taumarunui) and Campbell (Hawke's Bay), and opposed by counsel ■ for Mr. Wilson (Taumarunui) and Dr. M'Nab (Hawke's Bay). On' Tuesday and 'yesterday counsel argued the questions of whether . the Taumarunui and Bay of Islands petitions had been lodged in time to secure them the right of being heard by, the •Election Courts. •

Section. 49 of the Legislature Act, 1910, states , that .when all' the _ ballot papers have been dealt with in .• the manner prescribed, the returning officer, shall ascertain the total number of vote's received b'y each' candidate and shall publicly declare the result of the p 0l l: ! The 1908 Act, by Section 148, re- ■ quires the returning officer to endorso on the writ the. namo of the person declared to be. elected, and the date of '■such' endorsement. ■ • : The Essential Dates. . ■'. ' In the Taumanmui case the writ was '.Haftd- as ■ endorsed .with the name of the elected candidate on December 17. •The official count of the votes was, however, not completed till December' 18, on which day the result was handed to the Press to be advertised. The adlvertisement appeared on December 19. The petition-was presented on January 15. The question is from which of tho December dates mentioned does the. period'of 28 days allowed for the presentation of the petition commence to ''' run. _ . If .the' period' ' commences, from Decomber 17, Mr. Wilson's petition was not lodged in-time; If it commences! ■ from either of tlie other dates—December 18 or December 19—it was ■in time. . In the Bay of Islands, case .'the petition against Mr. Reed's return was hot presented within twenty-eight days of the original declaration of the poll, hut within, that period of an amended declaration,- which followed upon a recount!. Tho recount did not alter the 'positions, of!the candidates, biit .merely made several immaterial amendments in the n-umbers of votes received by the several- candidates. The question here is .whether in that case the_ declaration was the original declaration or the amended declaration. If the Conrfc decides thit the time allowed for presenting the petition must run from the dato of the original declaration, then the petition is late. If, on the 'other hand, ithe amended declaration must be taken as the declaration, the petition is in time. Frequent reference was made during the argument to the Wairarapa case of 1897, in which it; was sought to upset Ithe election of Mr. Buchanan (now Sir (WalteT Buchanan); The petition was 3iot- heard because the Supreme Court, consisting .of the late Chief' Justice 'Prendergast and Mr. Justice Connolly, decided that the petition had-sot been presented in time. The writ in that ■instance had been endorsed with the name of Mr.'Buchanan on December 8, 11.896, the newspaper publication _ was . ihade on December 12, and the petition •was presented on January 9,1897- The Court, in deciding that the petition was Jate, held that the period allowed for ' the presentation ran from the date of '• the endorsement of the writ.

Their Honours on the Bench were; — The Chief Justice (Sir Robert Stout), Sir. Justicc Edwards, Mr. Justice Cooper, Mr. Justice Chapman, and Mr. 'Justico Hosking. Mr. C. P. Skerrett, K.C., Mr. J. R. Reed, K.C., and Mr. R. Kennedy appeared for Mr. Vernon Reed; Sir John •Findlay and Mr P. Levi appeared for Dr. Rangihiroa; Mr. A. H. Johnstone appeared for Mr. Wilson: and Messrs. G. P. Finlay and J. D. Vernon represented Mr. .Jennings. The Old Wairarapa Caso, < Messrs. Skerrett and Reed had addressed the Court on Tuesday, and yesterday Mr. Finlay adduced argument in support of the contention that the Tauraanunui petition had been presented -lata- , . Mr. Finlay said that the success of liis case depended upon his being able to show the Court that the Wairarapa decision was applicable .to-day. .The 'dates in the Wairarapa case were:— The writ wa3 issued on November 20, 1806. ' . „ ... The poll , was taken on December 4. .. The writ was to be returned on or. before December 11The writ was actually endorsed with the - name of Mr. Buchanan (now Sir (Walter Buchanan'), as the name of the candidate declared to be elected, on December 8.. , A scrutiny was held on December y land 10. ~ The total votes, polled for the candidate were- ascertained on December 10. On December 11 a case of apparent 'dual voting was dealt with by the Returning Officer and scrutineers, and a statement' of tho state of the Roll was prepared that evening, and handed to tho proprietor of the local newspaper. On December 12 a declaration (required then bv Section 120 of the Electoral Act of 1893) of tho poll was pubpetition was presented on Janu- • 9 1897 Justice: Was the time then rllowable for petitioning 28 or 21 days? jfr Finlay: Twenty.-eight' days. The Chief' Justice:. Then-it was. in time if the declaration in the newspaper was the starting point. The Taumarunui Aotion. Tn the Taumarunui action the case whirili the parties had agreed, to submit for the Court's consideration was: "The opinion of .the Full Court is desired as to whether the petition filed herein was dulv presented within the time limited by Sub-Section (a) of Secyon WV of tho above Act. "1. The writ issued to the Returning Officer for the said electoral district pursuant to Section 98 of thet said Actt.

was made returnable within 28 days from November 21, 1914. The election for the said eleotoral district was held on Decoaiber 10 1914. '3. The date of the endorsement on the said writ that the said William 1 nomas Jennings was elected at the said election is-December 17, 1914. ' "4. The Returning Officer for the said district completed the official count as directed by Section 49 of the Legislature Act, 1910, on December 18, 1914. "5. On the said 18th day of Decem1914, at tho conclusion of the said official count tho said Returning Officer completed a form similar to the form numbered 22 in the Schedule to the Legislature Act, 1908 ; by inserting therein the information required to be inserted in the said form and signed the same and handed the same to the proprietor of a newspaper circulating in the said district, to wit, tho _ "King _ Country Chroniole," for publication in such newspaper.. "6- The said form containing the said information was published in the issue of the 'King Country Chronicle' of December 19, 1914. "7. The said petition was presented on January-15, 1915." Mr. Justice Cooper: If the time runs from December 18 or 19 the petition is in time? • Mr. Finlay: Yes. The Chief Justice: The whole point is whether the date endorsed on the writ is the date to count from, or whether the date of the publication of the result of the poll is the date.. _ Mr. Finlay admitted . that unless December 17 was the date from which the time was to run the petition was in time.

Mr. Justice Cooper remarked on the extraordinary, fact that although tho writ was dated December 17 the officials did not know at that time who had been elected as the official count had not been made. The. question, however, was whether the date endorsed on the writ mattered, or whether the date of the publio declaration was tho starting point'. The Chief Justice: Do you say that the declaration of the poll does not mean declaring a candidate to be elected? Mr. Finlay answered that when' in the Wairarapa case the result was declared that was taken to be inferentially the declaration of a candidate's election. That, added Mr. Finlay, applied exactly here. : .: Mr. Justice Cooper: No, that is not the position. here. In Taumarunui there was no declaration till December 18, and the publication in the newspaper was not made till December 19. Concerning Bay of Islands, Sir John Findlay, who .appeared for Dr. Te Rangihiroa in support of the contention that the petition against'the return of Mr.'.Reed was in time, then addressed the' Court. Respecting the Wairarapa case, he said that the judgment of Chief Justice Prendergast and Mr. Justice Connolly was based on the proposition, that there was no statutory provision for the returning officer's doing anything after he had.endorsed the writ, for ia the past it had been held that nothing the returning officer did after the endorsement affected the position. . To-day the law was quite different.. -Prior-to-1893 a publio declaration was necessary,; but in 1893 the Legislature said-that no public declaration was required.. •: '

Mr. Skerrett: A public notice, but no declaration. Sir John Findlay said that no person had a right to obtain from the Clerk of the Writs the date on which a writ was endorsed. Such information had been refused them in the Bay of Islands case. ' Mr. Justice Cooper: It is*a matter of State?. Mr. Skerrett: A State matter I Why? Sir, John Findlay replied that unless there was provision in law for a person to get the information the Clerk of' the "Writs declined to give it, and regarded it as a State matter. Anyhow,'that was the practice. Therefore, if the date of the endorsement of the writ was the date the time for petitioning ran from, the time ran from a date which was not ascertainable. That would be an amazing position. Mr. Justice Hosking: Well, that was the amazing position in the Wairarapa case. Sir John Findlay: With great deference I suggest that the decision in the Wairarapa case was wrong. , Mr. Justice; Edwards expressed the opinion that counsel need not argue the Wairarapa case at all, because since the decision' in that action' further enactments had been made. He thought that it was . clear that the only thing the Court was concerned with was the date of the declaration of the poll, and it was said that the time Allowed for the presentation' of the petition was within 28 days from thenDoes an Amended Declaration Matter? Sir John Findlay contended that the Wairarapa case did not now apply because the law had been altered since that decision. Ho said that the 28 days were to date from the declaration of the poll, and if, after a recount, 1 an amended declaration was made on the order of a magistrate, the time ran from that amended declaration. In the Wairarapa case there was no duty cast upon the returning officer to make the declaration, and once' the Returning Officer had retumed the writ his functions had been completed. Now, however, there was a clear statutory provision for a declaration. For the purposes of convenience and fairness, the date of a return as amended by order of a Magistrate should be the date from which the time ran.

Messrs, Levi and Johnstone addressed the Court, after which Mr. Skerrett replied. In his reply Mr. Skerrett submitted that the public declaration of a returning officer was not an effective act, not a. cei tificate of election. A'second declaration (made after a recount) served no purpose, was surplusage, and merely directory. In the Wairarapa case tho judgment really was to the effect that the last day for making the declaration was the day of the return of the writ. His case, however, could stand apart from the AVairarapa case. , That, concluded all the argument, and the Court reserved its decisions. The cases were tlien conditionally adjourned as follow.:—Taumarunui, till May 5,' at Auckland, for argument on the petition; Bay of Islands till April 30, at Kaikohe, for hearing of evidence and argument on the whole petition; and Hawke's Bay till April 30, at Napier, for argument on the petition. Of course, if either the Taumarunui or Bay of Islands petitions is in the meantime held by. the special Court to bo out. of tune, those cases can procecd no further. ■ ■