THE TAUMARUNUI CASE.

Dominion, Volume 8, Issue 2440, 20 April 1915, Page 7

THE TAUMARUNUI CASE.

'iMR. WILSON'S PETITION IN TIME. In the Taumarunui case, Charles Ken'dall "Wilson, the Reform candidate, petitioned against the return for the seat .of William Thomas Jennings, the Opposition nominee. During the hearing'of j!ths case it was diswvered that the iTwnfc was dated as having been endorsed ' on- December 17, 1914. although the official count had not been completed fell.the following day. As the petition •had been presented within 28 days of 'December 18, but not within that period of December 17, counsel for Mr, Jennings raised the objection that the petiI«"°J 1 put of and, therefore, not entitled to ..a hearing from the flection Court. The Election Court a£re&l to refer this question of time lto .- 3 . Court of .Supreme Court Judges < specially set up for the purpose of det«rminmg_ several questions m electoral tow;. Their Honours who composed tie 'Copt were the Chief Justice (Sir Robert Stout), Mr. Justice Edwards, Mr. • Justice Cooper, Mr Justice Chapman, |: and Mr.-Justice Hosldng. Mr. A. H .Johnrtone, of New Plymouth, appealed , ion-Mr. Wilson, and argued that the '■-petition was in time; and Mr. G P {.tFinlay, with' whom was Mr; J. D. VerB°n, both of Te Kuiti, appeared for Mr Jennings in support of the contention [that the petition was late. ~"Redding the question as to whether tna^ Taumarunui petition had been presented in time to secure for it the right of hearing by the Election Court, thfeir itlonours stated the problem thus: -. From what point of time does the period of twenty-eight davs run rl® ?£& on . 196 of the Legislature 4°®' 1908), in which to present a petition P i Section 196 reads: • "Subject to this Act, the Court Shan have jurisaiction to inquire into and ad] udicata on any matter relating to a petition fn such manner as it thinks fit, and, in parlUcuiar, may at any time during the trial diredfc a recount or'scrutiny of 3f. given at ,the election to petition . refers, and Shall .disallow the vote of every person found guilty of any corrupt or illegal practice, or whose name has been illegally placed or retain- • ©d on the roll."

. The, question, the Court said, was an • important one of practice. The decision m the old Wairarapa case, thev added, Might prima: facie create the impression that the fact of the writ bavin" been endorsed on December 17 in the ..-Tuumamnm case made that the point , of time from which the term of twenty- ■ eight days allowed for the presentation of the petition must count. "We have jhowever, come to the conclusion," conieni ? m A nt ' ' tha !' fords of ?ons \ iw !?? £®Si&lature Act, 1908, show that the time niust count, as the statute says, from the day on /which a returning officer has declared a candidate to be elected, and that the declaration spoken of must be the dementioned in Section 49 of 0.910, Sub'-section 7. . . Section 49 requires that the returning officer shall ascertain the total number pi votes received by each candidate and . shall publicly declare the result of the poll. Court Lays Down Order of Events* x "J?,? 16 ! no ' : ) i* l our opinion, matter, the Court gays, "whether the return has been made or not-/ or whether jhe return is effective or not. Section ; 196 deals with the time in. which. the return is to be presented, and the effect of the declaration is not in question. It is a point of time wo have to find. .There was no such clear point stated' in the statute under which the Wairarapa I case was decided, aijd the present elec-1 toral law is quite different from the ; ; Act of 1893." ' The Wiararapa case to which the : Court refers .was decided in 1897. There a petition had been presented by which 'it was sought to upset the election of Mr. Buchanan (now Sir Walter Buchanan). The petition was not heard ; because the Supreme Court, consisting of the late Chief Justice Prendcrgast and Mr. Justice Connolly, decided that /the petition, had-not been presented in 'time. The writ ill that instance had lieen endorsed with tho name of Mr. •'Buchanan on December .8, 1896, the ■newspaper publication was made on December 12, and the petition was presented on January 9, 1897. The Court, in deciding that the petition was late, siheld that the period allowed for the presentation ran from the date of tho endorsement of the writ The only difficulty the Court found in construing the current law was created by Section 148 of the 1908 Act, which Section assumed that tho declaration must be made before the return is made. The Court vent on to lay down the correct order for events, in theso ■words':— ./'ln fact, before tho writ is endorsed there should be the scrutiny. "And after it tha decjaratjojw ■

"And then there should be three days allowed to enable a recount to be demanded 1 . - -."And then after the recount a fresh declaration ■ should be made, if the previous declaration was incorrect. "And not till, then should the writ ba endorsed and returned." In the Taumarunui case the writ was dated as endorsed on December 17, hut the official count was not completed,till December 18, and the declaration was not advertised till December 19. The Court holds that ■ the mere fact that a returning officer chose to return the writ before the declaration cannot alter the provision of the statute as to when the twenty-eight days begin to run. The Court expresses its decision in the Taumarunui case thus: — "As the declaration -was not made I when', the- writ was endorsed, the i petitioner had a right to wait till the declaration was made before he bogan to count Ms time in which the petition could have been presented, and the petition has, therefore, been presented in time." The date fixed for the resumption, of the hearing of this petition is May 5. The continued hearing will be in Auckland, before Mr. Justice Cooper and Mr. Justice Chapman. BAY OP ISLANDS SEAT CASE TO BE HEARD. In the Bay of Islands case a petition had been lodged against the return of Vernon Reed, the Reform candidate. Before the Election Court appointed to hear the matter oommenced its inquiry the question of .time was raised, and it, too, was referred to the Special Court. The petition had not been presented' within twenty-eight days of the original declaration of the poll, but within twenty-eight days of an amended declaration, which latter followed upon a recount. Mr. Reed's counsel contended that the petition was therefore late. Counsel for Mr. Reed before the Special Court were Mr. C. P. Skerrett, K.C., and Mr. J. R. Reed, K.C., with whom was Mr. R,. Kennedy. Sir John Findlay, K.C., and Mr. P. Levi appeared for the petitioners..

The Court in its judgment pointed out that the recount had not affected the return of the candidate first announced; Mr. Heed still had a substantial majority. "Was there, then," the Court asked, "any necessity for an.v further declaration P If the declaration was incorrect —and this includes the relative numbers of the' votes—'an amended public declaration 1 becaime necessary. The words of Sub-section 5 of Section 147 of the Act of 1908 seem to us quite clear. They ire:— " 'If on the recount the Magistrate finds that such public declaration was incorrect, he shall order the Returning Officer to give au amended publio declaration of the total number of votes received by each candidate as disclosed by such, recount, and the candidate then found to have received the highest number of votes shall he declared to be elected.' "The Magistrate did find that the public declaration was incorrect. He direoted. the Returning Officer to give an amended declaration, and if tho Returning Officer did not do bo then the time for a petition had not yet b6gun to run, and the petition is too scon. It appears, however, to us that what (under the Mhgistrate'6 direction) the Returning Officer did, though not in correct form, amounted to an amended public declaration. We have very carefully considered the very able arguments urged by respondent's counsel in the cases, but the words of the Statute are so clear and explicit that whatever inconvenience they may cause is for tho Legislature to remedy, and the Court must hold that the time begins to run «fter a recount from the second declaration if the first public declaration is incorrect. Here the declaration includes two tilings,, the total number of votes received. by each candidate, and, by inference therefrom, the name of tho successful candidate. "In our opinion this potition was presented in time, and the motion to dismiss it must fail." In view of this decision, the hearing, of the Bay of Islands petition will lip opened at Kaikohe on April 30. HAWKE'S BAY PETITION VOTES AD.TUDOED DOUBTFUL AND CLASSED INFORMAL. Regarding the petition of Hugh M'Lean Campbell (Reform) against tho return for Mawke's Bay of .Robert M'Nah (Opposition), tho Hawkc's Bay Election Court gave judgment on two points which it had taken time to consider. The Court, consisted of the Chief Justine (Sir Robert Stout) and Mr. Justice Edwards,_ and one or .the points in Auestifitt, .which ijisfi gfis'efl at jfeL

interrupted hearing, was whether votes cast in the manner indicated in the following example wore valid:— £ ? (p , ■:£? > ? J,> ijjp 2s 2! \!* jp "0 > i g OS 53 ® r[3 m r, n ca <" H 3 'if* BJJ 33E X r * ec m ( g 5 g cp ap fb ■H 3E -H 3jc rr r r rem r. m lb 3 b m 12

The provision of the 1910 Act, said tha Court, is that the Returning Officer shall reject as informal "any ballot-paper that does not clearly indicate the candidate for whom the elector desired to vote." "It has Keen contended," the jud"ment continued, "that both votes are valid. It is said'that, as the surnames are left, a- clear indication is given that the voter meant to vote for that candidate whose surname has not been struck have to remember, first, that this kind of ballot paper did not appear to the Magistrate who mado the recount a clear indication of what the voter meant, and, though his decision is not binding on an Electoral Court, the Magistrate must have had some doubt ill the matter, also he would not have declared the \_otes informal If there is a doubt, his decision must be upheld, for then there ir no clear indication of what the voter's intention was. In the second place, it has to bo remembered that at this election, and perhaps at other elections, voters have struck out both names." References to an English decision which the Court held to be inapplicable here are .deleted, but the Court added:—"At the time of voting for members of Parliament in New Zealand a further vote is taken, via., a \ote on the licensing question, ana some who vote on the licensing question may refuse to vote in the election of a member'of Parliament; and they do so by striking out both names. A person may enter a booth to vote on the licensing question alone. We can find no reason why a voter should, if he intended to vote for a candidate, strike out part of the name. The voters can react; if they could not read, they could ask the assistance of the returning officer. There is no suggestion that these voters ivero illiterate. It was said that by the amending Act of 1910 the surname only should appear in the ballot-paper, unless there are two or more candidates of the same surname. It cannot reasonably be suggested that" any voter would before voting begin to reform his ballot-paper. "To our minds there is a doubt as to what was meant, and we do not therefore see our way to overrule the decision of the Magistrate. If eleotors able to read will disobey the plain instructions of the Act, . must it not be assumed, that they did not want to vote?"

Declarant's Votes Retained. The Second- question for this Election Court affected nearly 100 votes recorded under declaration. "The question was whether, if a declaration' under Section 18 of the 1914 Act is in the form in the schedule to that Act, that <3eclaratjon is in order. Most of the declaration votes were attacked on the general ground that the declaration in the form m which it was made was such as no person could truthfully make, in that the declarants affirmed both of two alternative statements, which were meant "to -be alternatives, and which, it was contended, were mutually exclusive in purport. The Court held: "There seems to have been a valid declaration, though it is put in this alternative form. The declarations were taken by the returning officer, and no doubt they were deceived by the words of Section 18, which states that the declaration must be in the form in the schedule. It is only the printing of brackets that shows that the statements are alternative. AVe are of opinion, therefore, that as the declaration is a valid declaration, we must hold the declaration to be sufficient to have entitled the persons to get a ballot paper, and their votes cannot be rejected on that ground—that the declaration is invalid." , April 23 is the date fixed for the continuation of the hearing of t'heHawke's Bay petition at Napier.