THE LATE MUNICIPAL ELECTION.

Globe, Volume VIII, Issue 1020, 2 October 1877, Page 3

THE LATE MUNICIPAL ELECTION.

RESIDENT MAGISTRATES’ COURT. [Before G-. L. Mellish Esq., R.M., and G. L. Lee, Eaq., J.P.] TOOMER AND OTHERS AGAINST E. H. BANKS. The declaration and petition of H. Toomer and others against the return of E. H. Banks at the recent municipal elect ion “ upon the ground that he was not capable of being so elected to or of holding the otllce to which he was declared to be elected” was heard at 2 p.m. yesterday at the Resident Magistrate’s Court. Mr Cowlishaw appeared for the petitioners, and Mr Geo. Harper for Mr Banks. Mr Cowlishaw said the present proceedings had been brought under sections 48 and 49 of the Regulation of Local Elections Act. The objections to the election were taken under sub-section 3 of section 50“thatthe candidate was not capable of being elected to or holding the olllce to which he was declared to be elected.” At the time of the nomination and election Mr Banks held a contract with the City Council for the supply of horse feed, and he proposed to show that even after the election Mr Banks received money from the Council, and was also a partner in the firm who held the contract with the Council on the date named. The grounds for the disqualification were shown in sub-section 4 of section 61 of the Municipal Corporations Act, 1876, as follows: —“ Any person holding any office or place of profit under or in the gift of the Council, or being concerned or participating (other than as a shareholder in a company or partnership, consisting of more than twenty persons) in any contract with or work to be done for the Council,” and under the section (61) Mr Banks holding a contract with the City Council was made incapable of being elected as councillor. He (Mr Cowlishaw) supposed his learned friend •would admit that Mr Toomer was a candidate at the late election.—Mr Harper said he w r ould admit nothing. Henry Toomer, called by Mr Cowlishaw, stated that he was a candidate at the last Municipal election. Mr Banks was also a candidate, and was declared to be elected. His (witness’s) signature was attached to the petition with other electors, and the petition had been filled up and signed before Mr Mellish, in the form prescribed by the schedule. Mr Harper said he would presently take objection to the petition. F. T. Haskins, called, stated that he was]town clerk for the city of Christchurch. An election took place—[Mr Harper said he objected to the question of the election, and would require strict particulars of the whole of the election from the first. The witness knew no more about the election than he did. He looked into the question at great length, and found that in protests of this kind full particulars of the whole circumstances were required.] Mr Cowlishaw said the case would then have to be adjourned. He was not going to declare the whole elect ion null and void.

Mr Harper said perhaps not; but he understood that Mr Cowlishaw was going to declare that Mr Banks was not elected. Mr Toomer had told them that he was an elector, but had not proved it. This was the first case of the kind that had been tried, and they must go fully into all the particulars. If Toomer was not a burgess, and thus not a proper candidate, the aspect of affairs would be materially changed. The Town Clerk having produced the burgess roll, his examination was continued. —On the roll he found the name of Henry Toomer, also that of John Dunn, Tuam street, and Edward Thomas, dealer, Whately road. Produced the minutes of a meeting of the works committee, at which the tenders for horse feed ordered to be called for were opened. This was on the 6th February. Tenders were revived from Banks and Co., and from Blower, ritoras with prices read.] Banks and Co.’s tender for the whole was accepted. The tenders had been sent in in accordance with a specification prepared by the surveyor, and dated Ist February. [Specification put in. ] Mr Harper objected to the specification going

in ; his client was charged for a contract, not a specification. His Worship said there was nothing to show the candidate’s acceptance. Mr Cowlishaw said he had already put in the minutes accepting the tender. He must go on with his case step by step. Mr Harper objected to any document of the kind going in. Section 174 of the M.C. Act distinctly said that every contract must be in writing and signed by the corporation under seal, and this was a contract over £lO. Mr Cowlishaw said there was a clause in the Act which allowed of contracts being made verbally. The examination of Mr Haskins continued —The tenders were called by order of the Council, and they were sent in after the advertisement had appeared. Could not say of his own knowledge whether any intimation had been given by Banks and McDougall of their acceptance of the contract, but the surveyor could. The firm proceeded to supply the goods and received payment on account. The following payments had been made to them according to dates of cheques : —March 20th, £29 5s lid ; May 14th, £46 2s 5d ,- July 10th, £37 15s ; September 10th, £3l 12s sd. The last cheque was handed them on September 15th. The goods had been certified to by the surveyor as supplied on the dates named. Q-oods were supplied from Ist to 31st August. [Voucher handed in.] Knew the firm as Banks and McDougall. Understood there were only two members of the firm. The last payment was made on the 15th of September. The Mr Banks named in the contract was a candidate at the last election. Up to the 15th Sept, the account then received did not include all the goods that had been delivered, but no further account was sent in. Could not say of his own knowledge up to what date the firm continued to supply goods When asked afterwards by one of the employees where he was to get fodder from, he sent him elsewhere. In cross-examination by Mr Harper, witness said it was not usual for the Council to enter into contracts the same was as this had been. The contract was entered into by the works committee.—By Mr Cowlishaw —The minutes of this meeting were confirmed by the committee at their next meeting. It was moved at the meeting and carried that the tender be accepted. Did not know whether any further communication had been made with Messrs Banks and McDougall. The tender was submitted to the committee and accepted by them. Messrs Banks and McDougall were to have signed in the blank space shown in the document before the Court. The document produced was the original one. The Council were not exempt from stamp duty. It was not usual to draw { up a contract after the tender had been ac- ; ccpted. The parties generally signed the I specification annexed to the contract on one of the Council’s forms. That was the usual plan, but it was left blank on the specification in the present instance. : Mr Harper here objected to the document being received in any shape as proof of any contract. His Worship said the document ! was certainly no proof of any contract. Mr Cowlishaw said it did not certainly contain the whole contract, but the specification contained terms of the contract. Mr Harper said he would also objectjto the petition being received, as it did not appear to have been signed before a Justice of the Peace. His Worship said the petition had been drawn up in the form required by the Act. If proof were required that it was signed before a Magistrate he did not quite see how they were to get out of it. If the Magistrate happened to die before the hearing the petitioners would have to take that risk. Mr Harper said the declaration had to be made before a Magistrate and it should be stated at the time that it was signed in accordance with the Act. It was purely the same as a declaration made under the Justices of the Peace Act. His Wor ship said the law required it to be in a particular form, and the petition was in this form. Mr Harper said the declaration and petition were mixed up together in the schedule, which, no doubt, had been badly drawn. His Worship—There is certainly an absence of solemnity about it; but I shall rule against you, Mr Harper, on this point, Mr Harper took his next objection —that it had not been shown that Mr Toomer was a properly nominated candidate —citing a decision given in L.J., March, 1876. Mr Cowlishaw submitted that the point was not tenable. It was only necessary to show that the person was a candidate, without going into particulars; and it was only required to prove that the person who signed the petition was a candidate. The election had been a contested one, and the provisions of the Act complied with when the polling took place. Messrs Banks and Toomer had been candidates, and it was unnecessary to go into all the technical details. The Returning Officer was made the judge, and it was for him to declare who was elected and who not; and he had declared Mr Toomer to be one of the defeated candidates. If the Court declared that Mr Toomer wus elected, the Court would not then enquire into the qualifications of the remaining candidates. The whole point was whether a contract existed at the time of election.

Mr Harper said his next point was as to the contract. [Sub sec. 4 of sec. 61 read.] All sub-sections were drawn on the chief Municipal Corporations Acts, with slight alterations, framed on 5 and 6 Wm. IY., in force in England, and these referred closely to all cases decided under that Act. In the present case no written contract had been tendered in evidence. It was tried to show that a verbal contract had been made, but it was clear that the tender for the supply of certain goods was above the sum of £lO, and it was also perfectly clear under the sub-section of the Act that a verbal contract must be made with the whole Council and not with the Town Clerk. The contract was bound in the first instance to be made in writing, and signed by at least two members of the Council on behalf of, and by the direction of, the Council, and not by the entry on the minutes of a resolution passed by the works committee. No evidence had been adduced that this resolution had been communicated to Messrs Banks and MeDougall, and even if it had been it was made a necessity under the Frauds .Statute that the contract should have been made in writing. It had been decided that nontrading Corporations might contract in any other way not put down in the Act, but in other cases they were bound by the restrictive clauses of the Act. In Pollock on Contracts it was laid down that the restrictions of the Act, though considered very hard in many judgments, must be carried out faithfully. In Jtoscoo on Nisi Prius evidence, p. 1135, it was shown that all contracts had to be carried out under the common seal of the Council. [Case cited.] The Council were in a position to have put a stop to the cont ract at any time, as it was only a contract from day to day, and it implied nothing mbre than treating Mr

Banks’s place as a shop, and going there from time to time as the articles were required. Taken at its very best, it was only a verbal arrangement, by which Mr Banks was called upon —not to the exclusion of others —to supply bran and oats from time to time ; and whatever right he had held he abandoned i( before the election. His learned friend had handed in a paper to this effect. Mr Cowlishaw said he was not going to produce it. Mr Harper would then have to call evidence. F. T. Haskins, called by Mr Harper, stated that he had received the paper produced abandoning the contract between ten and eleven o’clock on the morning of the 13th September. [Note read abandoning contract and expressing intention of paying any penalty incurred in consequence.] In cross-examina-tion by Mr Cowlishaw, the witness said the letter had been considered by a full Council at the last meeting, and it had been decided to defer consideration until next meeting of the Council. [Minute produced and read.] The minutes of that meeting were not yet confirmed. The practice was that the minutes of the works committee —who were appointed by the Council—were not confirmed by the Council but by the committee at their next meeting. Mr Harper now submitted there was evidence to show that on the day in question Mr Banks had abandoned the contract. Mr Cowlishaw —But the election commenced at 9 a.m. Mr Harper said if his learned friend were going on that objection he would go into the whole matter of nomination, &c. At any rate, Mr Banks was not elected when he abandoned the contract. The contract was not in writing, as it should have been if action were to be taken under the Statute of Frauds, and there was nothing to have prevented the Council from going elsewhere, as the contract was not complete, and his client could only have proceeded against the Council for any portion of the goods supplied. [Counsel read Pollock on Contracts, showing contracts above £lO should be made in writing.] To properly bind the Council to deal with Banks to the exclusion of all others, the contract should have been in writing. The contract had also not been made under seal —[L. J. p. 308] —and it was only fair to the public that they should know that a contract involving penalties could not be entered into by the works committee if not signed in legal form. The contract was an executory one, and should have been signed by three members of the Council, and also by Messrs Banks and McDougall; and it should also have been stamped. After dwelling on the difference between the nomination and election, as shown by the Act, the learned counsel said there was nothing to show that Mr Banks was incapable of being elected at the time of the election. Again, referring to the question of contracts, a late report received had shown that in every case tried the contract had come into purview “after” the candidate had taken his seat while continuing the contract, but there was not a single case mentioned showing where the party had been declared to be incapable or disqualified wheno the contract had been abandoned “ before ” the election. There was one case which he could cite showing that one person’s seat had been upset after holding it for nearly a year, because he had retained it and continued to supply goods of profit to a hospital. In conclusion, he would submit that Mr Banks was not disqualified from sitting as a councillor ; in the first place, because the petition to unseat him had not been made and signed before a Justice of the Peace ; secondly, because the existence of any contract had not been proved, and thirdly, because of the abandonment of the contract before the election. Mr Cowlishaw said that section 174 of the Municipal Corporations Act placed tl e corporation on the same footing when making a contract as if they had been private persons. The moment any money had been paid under the specification, section 17 of the Statute of Frauds would make the contract binding between the parties, and Banks and McDougall would have been liable for the non-perform-ance of the other portion of the contract. [Authorities cited.] He would allow that the contract though binding against Banks and Co. would not have been binding against the Council. If the contract had been between himself personally and Banks and McDougall he could sue them for non-perform-ance of contract, but they could not sue him. Long before the election the contract had been brought under the Statute by several payments on account. There was no necessity for the contract to be in writing, as the moment the tender was accepted the contract was binding for twelve months. Even under the late Municipal law there was an implied contract, as on the 15th September —after the election —Banks and McDougall received payment for goods supplied, and the contract existed from the very fact of the Council receiving these goods. [Authority cited.] Referring to the point of Mr Banks not being capable of being elected, Mr Cowlishaw said that under the Act the election commenced when the nomination paper was sent in. Coming to the abandonment of the contract, he would say that whatever its effect might have been, it was too late to get rid of on the day of polling. Supposing it to have any weight it ought to have been sent in before the polling commenced, and not an hour or hour and a half afterwards, as, up to 10 or 11 o’clock, under his own showing, he was labouring under disqualification. The abandonment did not determine the contract, as the City Council could still enforce it in law, and, notwithstanding this letter, though Messrs Banks and McDougall could say they would prefer to pay the money, the Council could sue for damages for non-performance of the contract. A notice of the kind could not terminate a contract. It was laid down in Addison that where two parties were bound by any document of a contracting nature, one could not discharge the liability without the consent of the other. A contract could not be rescinded unless there was an express power reserved to do so. It had also been shown that Messrs Banks and McDougall had received money on September 15th. His Worship said this money was for goods supplied previous to the election. The last goods were received in August, and did the firm abandon payment for goods received after the previous payment made them ? Mr Cowlishaw said if the notice meant anything, it certainly meant the abandonment of the money. The mischief had already been done under the statute, as, if M> Banks were elected, he might then be in a position to persuade his brothel councillors lo look at the question oi penalty in a different light to what the} might have done if he were not elected, am the burgesses would thus bo made to sufb j through loss of this penalty. Such a position as that was certainly not contemplated undo the Act. Ho would submit that there was uo necessity for the contract to be signed, as

the statute got rid of that by part payments having been made ; that the notice of abandonment had not been received until after the election had commenced ; that the notice of abandonment did not do away with the contract: and that Mr Banks was proved to be disqualified as a Councillor under the statute.

Tuesday, Octobee 2. His Worship gave judgment this morning. He said that in the case of Toomer v. Banks he had looked carefully into the matter and the cases cited on behalf of the defendant. He thought that the only point of importance was the question of the contract, for, having exhaustively considered the other objections raised by the counsel for the defendant, he had decided to overrule them. With regard to the question of contract, he had gone into the case of Biddle v. the London and Blackwall Railway Company, cited by Mr Harper, but that was overruled by the case of the Southof Ireland Colliery Company v. Waddell, and others. Therefore the argument so far fell to the ground. His Worship then proceeded to cite Roscoe to show that Mr Harper’s arguments with regard to executory contracts could not be maintained in the present case. His Worship held that, where a contract is of a continued nature, it was clear that one party to the contract could not of his own act annul it—could not do so without the consent of the other party. He, therefore, attached no weight to the note declining to continue the contract, as put in by Mr Banks after the election had commenced, and he had to declare the election invalid. Mr Cowlishaw supposed that the Court would declare the candidate next highest on the list elected. After some argument with Mr Cowlishaw and Mr Q-eorge Harper, his Worship decided that under clause 50 of the Regulation of Local Elections Act, 1876, the candidate next highest on the poll must be declared elected, but until he had the evidence of the returning officer, he was unable to declare the name of the person so elected. The case would bo adjourned till ten o’clock to-morrow morning, for the purpose of taking the evidence of Mr Lee, the returning officer. The question of costs was also allowed to stand over to the same time.