THE MAYORAL ELECTION.

Evening Star, Volume IX, Issue 2642, 5 August 1871, Page 2

THE MAYORAL ELECTION.

There was a special meeting of the City Council at noon to-day—present, his Worship the Mayor (in the chair), Councillors Cargill, Livingston, Mercer, Ramsay, it calc, Tlioneman, and Winter. Toe Mayor, in explaining the reasons that induced him to call the meeting, said : I have called the meeting for the purpose of. laying before the Council a letter writtemto Mr James Smith by myself, and his reply thereto. The whole correspondence has arisen out of the late election for Mayor; but before making- any remarks, 1 will read the letters, which are as follow :nr- ‘ “ Dunedin, July 31, 1871. ■“ Sir, —I beg to submit to you the following questions, and have to ask for your care-, ful consideration of them, and the favor of a reply as early as possible. “ Firstly—Referring to your favor of .the the 26th inst. to the Town Clerk, I would draw your - attention to the 19th clause of the Otago Municipal Corporations’Ordinance, 1865, which has nob,been repealed, and recites 1 That every election fop Mayor, Councillors, and Auditors shall be : held at such place within the City' or town, ns the Council shall direct,’ Query—Whether, after considering this clause, you adhere to the opinion expressed in your former letter, to the effect that it is imperative to have a polling booth for each ward strictly within its own limits, es}i cially seeing the Council did appoint the City Council Chambers as the polling place for High Ward ? • There is also this point to which I may direct your attention : that even if it he necessiry, for the clectioA of Councillors, is the necessity as urgent for the' election of Mayor, seeing that the Mayor is elected by all the ralepayers in the various wards, whilst .the Councillors are elected by the ratepayers only on the roll for the respective wards ? “ Secondly—ls it your opinion that the fact of the polling booth for High being iii South Ward at the recent election for Mayor is sufficient to render the election void, and whether in the event of any person trying the question in the Supreme Court, do you think under all the circumstances of the case, seeing no wrong was done' to any elector, the judge would upset the election ? “ Thirdly'—Assuming that I am illegally elected Mayor, and that no person ques'ions it, and I therefore continue to act. should 1 in that case run any risk of. incurring penalties from any decision 1 may give in my capacity of Resident ‘ Magistrate, that appointment being made under the authority of the Otago Municipal Corporations Empowering Act, 1865, and the Resident Magistrates Act, 1867 (I enclose warrant of appointment for your inspection) ? and further, whether any aot I may perform as Mayor would lay the citizens under any legal disability, penalty, disadvantage, or wrong ? la connection with this I would draw your attention to sections 30 and 33 of the Act of 1865. “Apart from these special circumstances, I wish you to advise me on the whole question. If there is no necessity for a now election, of course I do not wish to have the trouble or annoyance of contesting one a second time ; but as I do not fear the result of another appeal to the citizens, I would at once resign if there was apy chance of their

being put to needless expense tage by my not doing so. ||| i j ij “Trusting yomjshll jafl| answer as soon .;. { | | “ P.S.—I desire to be considered as a to self as Mayor, and nob necessarily for publication through.Jbhe Council or otherwise.— • HiS.F. V; ' ’“James Smith,' Esq.” ‘•"Dunedin, Ist August, 1871. “H. S. Fish Esq., Mayor. “ Sin, —I have the honor to append replies to the queries contained in your debt •?r of tbe81st nit. - -<•> “Firstly. Having considered section 10, o r the Otago Municipal Corporations , Ordi ( -nance, 18Qp,._I sec, no reason to.,.niter the Opinion expressed in dur’ former letter, that Section having been, in my opinion;- virtually ■ repealed by ,3rof the- Amending Ordinance of 1870/ 'so far' at least, as .-the former conflicts with, the latter. The a priori .question which Jyou raise, as to whether r or* not it is as necessary to appoint polling booths*in Ward in the case of a Mayoral election,’ as in that of the election of a Conn-; eillor, is not, in my opinion, material decision of the pdint; under consideration, which is simply, whether or not the Legislature has in fact ma le that course imperative in both cases ; and I have no doubt but that it has. ' , “Secondly. I am of’opinion that the fact of the polling booth for High Ward having ' been in South' Ward, tenders* your; election: voidable, ami that flic Judge would be bound to give judgment of ouster against you in tinevent of proceedings in the natu; e of y«</icarranlo being taken. _ _ • “ Thirdly. You would not, in my opinion, be exposed to any penalty, by cxereidifgn the,functions of Resident Magistrate; nor would any act or decision of yours in that capacity-; he void or voidable. As regards your acts as Mayor, it is, in my opinion, some what doubt , ful,' whether at cinujuPh law, they would be valid, the authorities'bn that point appearing to me to be in conflict; bub I am inclined to the opinion tljat the doth section of the Ordinance of 1885 would, in effect.legalize any such acts done before ouster, as it is thereby provided that-in the event of an election becoming void ‘ the Corporation shall coFrte under no disability by reason thereof.” It’ appears to me therefore that untit ■ he election becomes void, i.c is declared to be so by th< judgment of the Supreme Court, there is' «o neces---it.y for a new election. “Fourthly. In my opiniojutheacquiesconce of the candidates in the departure from statutory requirement, docs not cure that default. ‘ “I have the honor. &c. “Jambs Smith. The deductions to be drawn from Mr Smith’s letter I take to be these. First, that the election, if assailed through the Supreme Court, can be upset; second, if no persons' or persons take such action there is no necessity for a new election, because no act or acts I do as Mayor, or any act of’the Corporation, it having metis Mayor, will become voidable through the irregularity that hataken place. I should nor, after this letter, have taken any steps in the matter, but have just sat quietly and waited the course of events, thinking as f do that no person or persons would think it worthwhile to upset, the election of Mayor on such a mere legal quibble’as that which has arisen in this particular case, but that I haVte it on whatl consider ; tolerably good authority that action was about to be taken in .the matter by Mr Thoneman, and having heard that, emanating as I have said before from good authority, I deemed it the best thing I could do to call a special meeting,, and there and then to tender my resignation of office, and tbrow-myself again upon tin sympathies of 1 the citizens, because I ‘felt quite sure and fully satisfied from that sense of fair play, honor, and justice I have always seen exhilited by them, that I should be again returned without the slightest fear, and by a much larger majority. The Council is aware of the facts of the case. .Strange to say, I was not present at the meeting of Council when. it was decided to fix the Council Chambers ..as the, polling booth-for, High Ward ;,my magisterial duties preventing me from being present. The meeting ’waal presided over' by‘ Councillor Tlioiio.-, man, but T do nob attach anything to that circumstance, nor to the-.fact, of tile.’mistake haying occurred, for the iilforrtfdlity was just* as likely to have happened Jd.l had be.en _pregpnt- . ,A t any rate it shows that so far as l am personally concerned 1 / hot the slightest blame can beat-, tacbcd to myself in connection with the 'matter/ Seeing that is so, that nb wrong has been done, that no single vote that could have polled under.other.circumstances, was not polled on this occasion, that the booth was admittedly the most central place, I am at a loss to conceive, how anyone, unless, actuated by feelings of malice towards myself, or a desjre to raise up an ill-feeling. Or to put the, citizens’to the expanse of another election, and myself to the, necessity of contesting It,' why anyone should endeavor to upset the election on a mere quibble. When 1 heard that some person: or persons, contemplate taking the matt r into the Supreme Court, I instructed the Tpwn Clerk to call this.meeting with, a View to pay tendering my resignation at once, and as; I said beforg, going - before tbe citizens again. Shortly afterwards 1 Mr , Massey raised the question whether or not I could resign—his. own opinion being that I had no power to .resign. I therefore immediately wrote to Mr Smith, who has confirmed the Town-Clerk’s'opinion, that 1 had not the slightest power of resigning .until ray position as. Mayor is : assailed, in the Supreme Court, unless I did one.of three things, viz;', that I should' take into my, head to die, which I hope will’ not happen just yet; that I should'become insolvent, which I trust will not occur; or that I- should stay away from a certain number of meetings of Council, which I will not do. 'Mr Smith, at my request, put his opinion in writing as follows: —* “Dunedin, Aug. 5, IS7I. “ Sir—With reference to the question submitted to ns yesterday by his Worship the Mayor, and in ■ reply to yourlbtter of this date, we halve the honor to ilifo'nn you that we are of opinion that his Worship bahuot resign the office of Mayor/, as there is no provision in the Acts to enable him to pursue such a course. 'Hemight let the office become voidable by hbn-attendancS/ but then be would be liable to fine. “ We have, &c., “Smith & Axmeu.sox. : “ J;-;M. Massey, Esq,:, ■ £ s’ “Town Clerk,” That being so, I km compelled to tpaintaili

1m nMfcion, and must throw upon my if they think fit to do so, the task it in the Supreme Court. Had it be®Jssible to have put all doubt out of li I SHKr b y resigning, I would have done so, jLgßoesirous that the full facts should go pßprfe the public. It might be said that I °Was determined to retain office until such time as 1 could be ousted from it; but I am quite willing to resign at this moment, if there was any necessity for doing so ; but I am advised that no such necessity exists, unless action is taken in the Supreme Court; In -tHe'coufse"SriH’d that followed, Councillors Livingston, Merc3r, Cargill' expr *fesevl'their disapproval of the keeping back pf the correspondence read at the last special'meeting. Councillor M'Tcef expressed bis" approval of the action now taken by the Mayor, and Councillor Car,pH said hje l trusted of the . citizens thought it necessary to Jmtost this matter! they would ■ odli&der it well before r taking rproceedings. which ;wouidrp-esult in considerably dost to the (Sty, and partake >somowjiat jbf "a factioua-;character, because 1 altiipflgh. it* mighf-be that r .irregularity had occurred in with 1 the election, it w.aq.qipte, xjiat no one had been preju licfed, ip - any degree in consequence/ . T-iTo'Mxvoii; 'tiT-commanting•on-lhe obser- ■ vationsof;Cpuggi4lo:s, observed that although it might be a matter for regret that he had not laid'the former cpgrpspondence before the Council earlier, his motives were, he contended,;, good ones, He could see no object to be gained in laying it before the Council. As to the subject:of costs, although he considered he perfect right to call upon the (Jonhcij t6de|bnd any-proceedings taken against him, it to ask " the Council fot oii£ shHlingi'i^ljycase would have ti be defended connsel, but, in .all' probability, be should, defend it himself—ah if it were undefended,- judgment would go by default, and the judge would be boiiiid to mu'et the defendant in costs. 13 it be had not the slightest doubt that the judge on , hearing the casv'atid' seeing the equities of it, would not give costs against 'the unfortunate defendant. He had been pestered every day about this matter,'as if it vas. not enough'to have to attemi to tne duties of the office in addition to his own business. Ho could not up with the annoyance any ,-longer,-;and hoped his,, opponents : would not delay in tcstjng. tbe'biatter. • ■ The meeting then brotd;usX:£ ;