MASTERS UNSEATED

Dominion, Volume 13, Issue 149, 19 March 1920, Page 8

MASTERS UNSEATED

STRATFORD ELECTION

UPSET

ILLEGAL PRACTICES PROVED

JUDGES' INTERESTING' REVIEW OF LAW '}

RESPONDENT MAY STAND AGAIN

By Telegraph—Special Reporter,

Stratford, March 18. The Election Court in the Stratford petition delivered judgment to-day. The effect of the decision is that the election is declared" void and a new election must be held. Mr. M. Myers appeared for petitioners, and Sir John Eindlay, with him Mr. Levi, for respondent, Robert Masters.

In (delivering the judgment of the Court,',the Chief Justice said: Th's i 9 a petition by .Messrs. Young, Hall, and Hine," electors in the Stratford Electoral District,' against die return of Robert Masters as member for.the district, who was declared duly elected by a majority of 01 votes.- The first charge alleged in the petition is that the respondent was guilty of corrupt'practices. These practices were:

(1) That in the King's Kinema in Stratford he gave valuable consideration bv providing those present with entertainment in the form of an exhibition of moving pictures with music, and that that entertainment was paid for, or agreed to bo paid for, in order to induce electors to vote at the said clect'on: (2). That the mid Robert Masters on October 30, 1919, with a 'like intent, at a meeting held in the Town Hall at Stratford, provided persona present with entertainment consisting of music which was, paid for, or agreed to bo paid for, by tho said Robert Masters or his agent As nn alternative charge, that ho "ommitted tho offences of bribery by doing what was alleged or alternatively that he was 'guilty of corrupt practices. . A further alternative charge. : was that if he was not guilty of corrupt practices he was guilty of illegal practices, and that his election was void. , , , . The fifteenth paragraph asked that the votes of those persons who wero present at the theatre' should be struck off tho i>oll ns being persons who had- been bribed. '•..„•• What happened m respnet of the music at the Town Hall on' October 30 and the music and pictures on. December lGJias been shewn by the evince, as to which there is little' dispute. -.

What the Law Says. Before, hovjevei', referring t° . t"^ 0 , charges, it may'be well to state what lite Legislature Act, 1908, declares with reference to corrupt and illegal practices at election's. Section 215 appears in that part bf the statute which.deals with "corrupt And illegal practices' at elections, and it defines what tho offence of bribery' is. It cannot,. in our opinion; looking only at the facts hers proved, be said that what was dono constituted tho offence of bribery within tho meaning of section 215. Nor can it be said A that it constituted the offence of "treating as denned by section 210, nor the oftence of undue influence as.defined in section 217. The words used, however, in section 1 221 are:. "Any person who commits any corrupt or illegal practice is" liable, etc., and it was urged that it was a corrupt practico because section 12 of the Legislature Act thus defines corrupt practices:— Corrupt practice means bribery, ~> treating, undue influence or personation as defined by'this Atit or as recognised by the common law of Par : v liament, and includes any Act declared by this Act to be corrupt practioe 'i ■ V . ~ • i i This seeks to bring in what. is termed tho common law of Parliament. Our .Crimes Act has abolished the common law of! crimes bo far as indictment for crimes is concerned, and it is very difficult to discover where, the common law of Parliament is to.be found. The British Parliament dealt with petitions through the ngency of a Parliamentary Committee for ir long series .of -years. Election courts were established, however. in 18G8, upon'n plan which was followed in this country veara later. Since th» institution of these courts, more regular reports of these eases have appeared Counsel was asked if he could, cite any precedent from,'decisions given in Parliament or in- tho election courts where wmething similar to what has happened hero was pronounced to be. ; n corrupt practice, but he was. unable to do so.

Distinction Between "Illegal" and "Cor-

rupt" Practices. The groat ..'distinction'.between a corrupt ,'mft an illegal practice is that there must be in tho person guilty of the ;aet complained of a corrupt intention, us was said by Field "J.-.— A corrupt practice is a thing the mind goes along, with; an illegal ■■' practice is a thing' the Legislature has, determined to prevent, whether il is done honestly or dishonestly, s

In our opinion there is no proof of a corrupt practice so far as the two allegations referred to are concerned. Taking the two allegations in their clronoorder, then so far as the occasion of" October 30 is concerned, there is i.o proof that at tho time Mr. Macalister engaged Mr. Fox to'provide music for the meeting- there was any payment made or promised, and it may be that this arrangement doe?) not come within the terms of. the section 219 of the statute. The words are:— No persons shall for the purposes of promoting or procuring the election of a candidate at any election

be engaged or employed for payment (c) to act or render service in any capacity unless tho payment is authorised by the fifth schedule hereto.

There is no authority in the fifth sche. dulo for employing musicians. The other section of tho Act bearing on tho matter is section 220, which says:—

No payment or contract for payment shall lor the .purpose of promoting or procuring the election of a candidate at auy election be mado

(d) in respect of any matter whatever except 'as authorised by the fifthschedule hereto.

We might have some-difficulty upon tho evidence presented to us in holding that this transaction amounts to an illegal practice. We have,' however, to consider the effect of. what took place on December IG. An ille;:nl practice has thus been explained. "It involves no question of motive, pure or ! otherwise. Tho only question the Court has to consider is whether there has been a/breach of the Act." What happened in this case was that Mr. Masters' applied on September 9 by letter to the secretary of the Stratford Pictures and Amusements (Limited) for the hire of. the King's Kinenia for tho nig'ht beforo the day of the general election. On Octobc/13 the directors passed tho following resolution: "That Mr. Robert Masters lie informed that the directors "have not decided to lease the theatre for meetings in place of ordinary programmes, but have decided to give him the first option if they so decide." On November 24 there was anathor meeting of -the directors, at which Mr. Robert Masters was present, He brought up the subject of the letting of. tho theatre on the night before-the polling''day, and tho directors passed the following'resolution: "That Mr. Robert Masters be granted the use of the Kinema Theatre the night before the coining general election at the rental of the average takings of I!l similar previous days of the week. Also the uso of the programme and orchestra.- The same privileges to bo offered to tho Hon. ,T. B. Hine should ho require ' same on any other night." Mr. Porritt states ' with reference to tho words in the resolution— "the use of the programme and orchestra was to be given if required"—that Mr. .Robert Masters made the suggestion that thev might be required. Mr. Robert Masters does not contradict -Mr. Porrltt's account of the meeting.

An Illegal Practice, and Why. Tho hall was used by Mr. Robert Mas-

ters and the music and pictures wero used at the meeting before ho began his speech. The amount paid was .£lO 9s. Id., and was computed by calculating tho average takings of the theatre for thirteen of tho correspond:jig days, 1.u., Ti.esdays of earlier weeks. \\ e . therefore had proved to us that what Mr. Masters paid for was the uso of the hall, pictures, and music. He did, however, use them, and wo aro forced to the conclusion that- lie used them for the' purposo of procuring his election as a candidate. Now, the fifth schedule pi the Act as amended does not authorise any expenditure for such a purpose. This expense, though incurred in connection with a public meeting, and not otherwise, was not a necessary expense, of holding a public meetinr, nor was it an exDcnse in respect of miscellaneous matters, and it is not so returned in the candidate's return of expenses. It was contended that as the £\0 9s. Id. was the rental for the hall whr.har the pictures and music were used or uos, Uio cost of Mie pictures and theatre ought not to be considered as included witniti that sum. There are, it appears to us, two answers to this contention, First, 1 Mr Masters asked for the option of. the use of pictures and music and gut' u included in the resolution of the company. It became, therefore, part of the bargain he made with the company, and the Court cannot nqw sever it. He obtained, this concession by payment, hecondly.'he was not liound to use the music and pictures. He could have held the public meeting without. Ho however, used the p'ctures and music for which he had bargained and pa'd, and we must assume that he did so because he thought it mMit promote or help-to procure his election. This becomes, therefore, an unauthorised payment under section 220, and is* an ellegal practice. AU may point out that a very slight payment has been held to bo an illegal practice. In the Southampton case there was a payment of only two shillings for.a railway fare to Ivrne an elector to the poll. It was held that it was an offence—an illegal prac-tice-but that the Court had power to grant relief,'nnd relief was granted on the ground that it was a very small sum and did not affect the, election. But Wright, J., said in granting relief: .That with great reluctance and not wishing this to bo a precedent for any other caso whatever, wo think ; this is within the sub-section." That is to say, that it was an offence which tnat Court was nb'.o to condone and did, condone. Therefore, then if we thought that the election was not affected by tho music or pictures still we have no power to condone a breach of the Statute. Masters May Stand Again. We, therefore, must determine and certifythat the election of Mr. Robert Masters, at tho poll taken on December 17, 1919, at the election for the Stratford electoral (district is void. The other matters that wo have to consider are, first, whether any incapacity should bo imposed upon the candidate- Mr. Robert Masters, and we decide that no incapacity should bo imposed on him, - and wo shall so certify. We nro of opinion that he was guilty of no corrupt practice, and the illegal practice -was done openly without any idea that ho was violating the law. As to in-, dpmnities to witnesses, if asked for; we shall be prepared to give an indemnity to Mr. Robert Masters, to Mr. Macalister, and all the other witnesses- we have heard. The only remaining question is tho question of costs. These may be divided- according to the measure of success obtained by the respective par-, ties. Wo think that tho proper order in this caso is that the respondent do pay to the petitioners their costs, charges, nnd expenses of the petition and hearing bo far ns regards the paragraphs of. the. petition- on which they have succeeded'; and. that tho petitioners must pay to the respondent, his costs in connection with ' tho subjects of disqualified voters and alleged irregularities in connection with tho poll. It - was further directed that costs be taxed by tho Registrar at Wellington, nnd ; that any further question about costs be referred" to tho Court at Wellington.