THE ELECTION OF CITY AUDITORSOFFICIAL INQUIRY.

Globe, Volume IX, Issue 1358, 21 June 1878, Page 3

THE ELECTION OF CITY AUDITORS—OFFICIAL INQUIRY.

Thursday, June 20. [Before GK L. Mellieb, Esq., R.M.] An inquiry under section 48 of the Regulation of Local Elections Act was opened yesterday into the circumstances connected with the late election for city auditors. The petition under which the inquiry was held was as follows :

To George Lilly Hellish, Esquire, a Justice of the Peace for the colony of New Zealand and Resident Magistrate for the district of Christchurch in the said colony. Y/e, the undersigned candidates and electors hereby declare that we verily believe that at the election to the office of auditors for the borough of Christchurch, holdcn at the City Council offices of the city of Christchurch on the first p iy of Juno, 1878, at which Matthew Henderson and Herbert Edward Alport were declared to be duly elected to the said offices, the said election of the said Matthew Henderson and Herbert Edward Alport is void upon the following grounds under sub-section 5 of section 50 of the Regulation of Local Elections Act, 1876—viz.., that voting papers were taken out of the ballot box otherwise than as provided by the said Act, so !'S to affect the result of the election, anti under sub-septiou 6 of the said Act, vi?., that other irregularities occurred in the proceedings which tended tj defeat the fairness of the election. _ And wo pray that inquiry may be made into the said election under the provisions of the Regulation of Local Elections Act, 1876, and that the said election may be declared to be void.

Mr Cowlishaw appeared to watch the case for the returning (fil ter, Mr G. L. Lee. Mr George Harper appeared for the petitioners.

His Worship—ln this cape is there any question as to preliminaries. Under clause 48, say for instance ?, Mr Harper —This petition, your Worship, is under the 48th section of the Regulation of Local Elections Act, and the grounds upon which the petitioners pray that the election may bp declared void are taken under the fifth sub-oection of that clause. It is not for a scrutiny of votes or for the seating of the next

candidate. Your Worship will remember that the last petition heard before you, in re Toomer, was for the seating of the next candidate on the poll. This is not. This is for declaring the election void on certain grounds which I shall set forth. Mr Cowlishaw—l would desire to draw the attention of your Worship for your own consideration, whether you can proceed under this petition, because it does not state the grounds under sub-section 5. That subsection says that the election shall bo void, provided “ any voting paper was taken out of a ballot-box otherwise than as provided by this Act so as to affect the result of the election.” Now the main point of that sub-section is the last sentence, “ so as to affect the result of the election,” But the ground stated in the petition is not that ground. It is that ballot papers wore taken out of the box otherwise than as provided by the Act, and that other irregularities occurred so as to defeat the fairness of the election. I raise the point for your Worship’s consideration, whether the petition covers the whole sub-section ?

Mr Harper—lt is not necessary. His Worship—lt will be for my decision whether the irregularities defeated the fairness of the election.

Mr Cowlishaw —The ground is your Worship that the petition does not set out that the taking out of the ballot papers as stated affected the result of the election.

His Worship —Thao is for my consideration.

Mr Cowlishaw —Pardon me your Worship, but I have not yet stated the whole point as bearing upon the consideration I have put before you. Had sub-section sof section 50 stood alone, there would still be ground for the objection I urge. But it is still more strengthened by section 51, which says — “ No inquiry shall be made as to any election except as to the truth of any of the allegations set forth in the foregoing section, nor into any such allegation, unless set forth in a petition as aforesaid.” Now the petition contains no allegation that this abstraction of ballot papers affected the result of the election. Well then the question then comes, can you hold an inquiry ? The Act says that if there is no allegation, as provided in the 50th section, in the petition, an enquiry cannot be held. Where is the allegation in the petition that the abstraction of the ballot papers affected the result of the election ? Again I say I don’t think that the petitioners can come within subsection 6, which forms part of their ground of petition. Sub-section 6 says “that any other irregularity occurred in the proceedings which in the opinion of the Resident Magistrate tended to defeat the fairness of the election,” Now there is no allegation in the petition as to the nature of these other irregularities, and I contend that the grounds alleged are not sufficient under section 51. There are no irregularities set forth, but we have a mere statement that there were irregularities. This does not disclose sufficient so as to prepare the other side to meet the allegations. The terms of the Act are precise, and unless the allegation are stated in the petition, your Worship cannot hold the enquiry. My learned friend, I contend, has therefore not brought himself within the terms either of sub-sections 5 or 6,

Mr Harper —I may say at the outset that my learned friend has no locus standi in this Court, as we are not accusing the returning officer. So far as the objections he has raised are concerned, I contend that schedule 6 to the Act, which sets forth the form of petition, must be read with the sub-sections 5 and 6. The schedule is as follows. [Read.] We have set forth onr grounds of petition under sub-sections 5 and 6, and have therefore brought ourselves within section 51. We have not stated what evidence we intend to bring forward in support of our allegations, nor was that necessary. Wo merely have to specify the grounds under which we desire an enquiry. We say that ballot papers were taken out of the box in a manner not provided for by the Act. The other ground set forth in the petition is that other irregularities occurred which were calculated to defeat the fairness of the election. That, of course, is for your Worship to decide. We have taken the words of the sub-section for the words of the petition. Mr Cowlishaw—But you have omitted to say that the taking the ballot papers out of the box was done otherwise than provided by the Act, and so as to affect the result of the election.

Mr Harper—Those words are in my copy. Mr Cowlishaw —They are not in the original. Mr Harper—That is only a clerical error, which may be amended. As regards the other point raised by my learned friend, it is for your Worship to decide whether the irregularities affected the result of the election, and therefore, until the evidence is produced, we can but allege in the words of the subsection itself.

Mr Cowlishaw —I thought it right to draw the attention of your Worship to the matter not on behalf of the Returning Officer, whose only desire is to show that the election was conducted in a proper manner, but rather as an am icus curia, My contention is that the petition discloses no grounds for coming under sub-section 5, and as regards the other part of the petition if they rely upon sub-section 6, they must on the authority of section 51 show in the petition what the other irregularities consisted of.

His Worship—lt is for the Resident Magistrate to decide whether certain things did or did not affect the result of the election.

Mr Cowlishaw —But your Worship cannot under section 51, make the enquiry, unless the allegations are stated in the petition. His Worship —Thq only material question of fact is vyhether any R.ullot papers wore taken out of fhe bo* in a way not provided for by the Act. Mr Cowlishaw—Pardon me; so as to aifect the result of the election.

His Worship—Pardon me, if you don’t interrupt mo I will state what the Ac 1 ,, seems to me to he. It remains for the Magistrate to decide whether or not the things alleged to be done affected the election, and, therefore, lie must hear the evidence of facts. I shall allow the case to go on. Mr Harper then proceeded to call evidence as follows:

Thomas Brown Graig deposed—l was one of the candidates at the recent elect ion for the office of city auditors, and I was not elected. Matthew Henderson and Herbert Edward Alport were also -Candida' es, and were elected so far as I know. I did not appoint a scrutineer, nor did I have one at the election. I have been told who voted for me. Mr Oowliahaw —Tine is not evidence. You must produce the voting papers. Mr Harper —I intend to do so. Witness —I was p resent at the election, and voted between 9 and 10 a.in., about ten o’clock.

Mr Harper—Who did you vote for ? Mr Cowlishaw —That is not evidence, your Worship, Witness—l voted for Mr Alport and myself. I had three voting papers. I gave more than one vote for myself, and more than one for Mr Alport. Herbert Edward Alport —I was a candidate at the last election for city auditors, and was declared elected. I voted at the election for myself about half-past nine. I gave three votes. I had three voting papers given to me by Mr Leo, the returning officer. Andrew Duncan —X am a burgees of the city of Christchurch, and as such voted at the last election of auditors for the city of Christchurch. I voted about ten o’clock in the morning, and gave four votes. I had four voting papers given to me. They were given to me by Mr G-. Leslie Lee, the returning offi -er.

Robert Sutherland—l am a burgess of the city of Christchurch, and voted at the recent election for city auditors. I gave four votes. I voted about ton o’clock. One cf the persons acting as returning officers or assistants gave mo the papers. I think it was Mr Tribe.

Mr Harper said lie should now prove that the witnesses just examined were burgesses. Murray—l am assistant town clerk. < produce the burgess roll foy the City of Christchurch. The names of Andrew Duncan, Robert Sutherland, Herbert Edward Alport, and Thomas Brown Craig appear thereon. X was present and assisted at the election for auditors. I was present except at short, intervals all the time. I gave voting papers to

electors. I gave papers for the first hour on the cumulative system. I stopped doing that about half-past eleven. Not many had voted at that time. After that hour single voting was allowed till the end of the election. I was present when the ballot boxes were opened. I recollect some papers being taken ont the ballot-boxes. It was between six and seven o’clock after the poll had closed. The papers were taken out with the others. I mean all the ballot papers were taken out of the boxes. The papers put in before eleven o’clock in the morning were taken out and separated from the others. I think Mr Leo burnt them as far as I remember. The rest of the papers were put up in a parcel and sent to the Magistrate’s Court the next morning. The ballot papers put in before eleven were not included in the counting, except of course one single vote from each. After one vote for each candidate was taken from these papers the remainder were destroyed. Those present at the time besides myself were Messrs Lee, Haskins, Tribe, and Hobbs.

By Mr Cowlishaw—Those who had given dual or plural votes were easily separated. All the papers had the same number. Mr Sutherland’s papers for instance, would have the same number on them. The one vote to which he was entitled was taken out and the remainder of the dual or plural papers given before eleven o’clock treated as waste paper. P. C. Tribe—l was present at the election for city auditors and at the time the ballot boxes were opened. Some of the ballot papers were destroyed. By Mr Cowlishaw —When Mr Lee discovered that it should be only single voting he took a list of all those who had voted before eleven. There were not many voted before eleven o’clock. Perhaps twenty voted, W. G. Walker —I am clerk of the Bench of the nearest Court to the place of election for city auditors. I had some ballot papers sent to me. I produce them. Mr Harper--1 would ask your Worship to direct the witness to open the ballot papers in compliance with section 53. His Worship —Yes. They can be opened. Mr Lee—l will call your Worship’s attention to the fact that the Act saye that no paper shall be opened so that any person can see how any elector has voted. I would ask if the papers are to be overhauled that the backs only upon which the numbers of the voters and initials of the returning officer are placed shall be seen by the witnesses. It may be of great consequence to some of the electors not to let it be known how he voted.

His Worship --That comes under an earlier portion of the Act Mr Lee, I think, and not in connection with disputed elections. It may be necessary to examine the papers, so as to see whether the latter part of sub-section 5 has been infringed—whether in fact what has been done affected the result of the election.

Mr Cowlishaw—l would draw your Worship’s attention to the fact that section 53 contemplates a proper scrutiny of voting papers bring made, and not for them to be overhauled in the case of a disputed election. His Worship—Mr Harper, what ia your no it question ? Mr Harper, to the wit ness —I want to know whether you can find among the papers in the parcel you have there any dual or plural voting papers ? Mr Cowlishaw —In the public interest, and as preserving the secresy of the ballot, I shall protest against this being done. Mr Lee—l think it ia for your Worship to consider whether if these pipers are to be overhauled the officer doing it should not be required to make a declaration that he will not make himsedf acquainted with the way in which any. person voted, It is very important that the secrecy of election under the ballot should be respected, and it seems tq me that if what I have suggested is not done, there will be no secrecy at all. Mr Harper —I may say that in looking up cases prior to coming here that in England where there has been disputes as to elections the ballot piper is given entire in the report of the case, having been lithographed with the name of the elector, the crosses, and all. I want to ask Mr Walker whether there are any dual or cumulative voting papers in the packet. However, it is in evidence that cumulative voting was allowed up to a certain time, and that cumulative voting papers were put into the ballot box, and my object ia to see whether any cumulative voting papers appear in this packet. His Worship—lt will take some time to arrive at that. Mr Lee —The number of the elector corresponding to that on the roll is on the back of the paper. Mr Harper—l don’t know whether Mr Alport has any wish not to divulge how he voted.

Mr Alport—Not at all. Mr Harper —Then we can get Mr Alport’s paper, and there will be no need to search all through. Mr Lee—Mr Walker must take a declaration not to divulge any name he may see accidentally. His Worship—l don’t think it is necessary. It is not so laid down in the Act. It is only provided that the returning officer and his assistants shall take such a declaration. Mr Cowlishaw If Mr Walker makes known who Mr Alport voted for will he not be liable to a penalty uncler section 43 ? If he answers Mr Harper’s question I think he will be liable to a penalty of £SO. His Worship—The best way will be for Mr Walker to hand me the voting paper, and for me to decide as to the question which Mr Harper shall put. Mr Harper---! would point out that it is provided in the Act that when a scrutiny is called for the voting paper can be produced and given as evidence of a vote having been given. His Worship—You say, Mr Harper, that the tenor of the voting paper must be known, Mr Lee—l think that applies only pi eases of double voting. His Worship —I don’t think it matters. It is a question of disputed election. My Lee —I hope your Worship will see that I do not raise these objections on any personal grounds. My only object is to see that the secrecy of the ballot is preserved, which is a most important thing. That is all I want, Mv Harper—Well, if that is the case, we shall get over the difficulty if you can say, Mr Lee, that there is only one No. 28, which is Mr Alport’s number.

Mr Lee—-There is not, to the best of my belief, one single dual voting paper in the parcel. His Worship—Then the question arises, which is an exceedingly difficult and important one as affecting this case, whether the voters while this cumulative voting went on put the same names on all their papers. Mr Harper —i don’t want Mr Walker to divulge how any one voted. I only want to see whether any of those papers are dual or not. “Mr Walker, will you see if there is more than one paper numbered 424, Mr Duncan’s number.

Mr Walker —There is only only one paper numbered 424.

Mr Lee —I was exceeding careful in going through the votes, and I am sure there are no double voting papers. Mr Cowlishaw —Have you given publicity to the number of votes received by each candidate ?

Mr Lee—Yes, they wore published in the papers. Mr Harper —I would desire, your Worship, to quote clause SG. It sajs : —“lmmediately after the close of the poll the returning officer and each deputy returning officer shall seal up all the voting papers used at his booth, See,,” and clause 37 says that “ the packet so sealed shall be transmitted to the clerk of the nearest Resident Magistrate’s Court.’* Mr Cowlishaw —Mr Lee would like to have a« opportunity of stating what took place. Q-corge Leslie Tjee deposed —To the best of my belief, the time when 1 discovered the error in the votes was a little after feu o’clock. 1 went through the votes and found that twenty-eight persons had voted up to that timq. X sent round to the different candidates to apprise them of the mistake made, and that for the remainder of the day the voting would be single voting. The ballot wont on till six o’clock. I then took out all the dual voting papers and destroyed them, and instructed my deputies to do the same. When the boxe ß were cleared the dual papers ware handed to me and I destroyed them.

Mr Cowlishaw Did you examine the papers so as to be able to say that the four papers contained the names of the same persons ? Mr Lee —I could not do that. lam forbidden by law to look at the front of the paper. There is not a single instance of the recording of votes in which I could say how they were given. At the close of the poll I examined all the papers, leaving one paper for each voter. I treated the duplicate papers as waste paper, and destroyed them. If a scrutiny had been demanded, and these papers been left in the box, they would have been put on one side. Mr Cowlishaw—Supposing that duplicate papers were put into the box by every one, and they had voted for the same candidates on all, the result would of course have been the same as you declared it ? Mr Lee—Precisely. The result would bo the same.

Mr Harper —In cases where duplicate voting occurred, did you simply take out the papers without looking at them ?

Mr Lee—Yes, Wo did not look at the contents. I assumed that persons voting would use their papers for the two candidates of their choice, or they might have given them all to one. The would hardly vote in any other way in order to make their votes of use. This closed the evidence.

Mr Harper—l do not propose to take up your Worship’s time for very long. I submit that the Act states explicitly that it is the duty of the returning officer to send all the papers used in voting to the Resident Magistrate’s Court, and I would also point out that the grounds upon which this petition is brought is under sub-sect ion 5, which I have already quoted. Now I submit that it is put in evidence very conclusively that ' voting papers were taken out of the ballot I box after the close of the poll. Wo are prevented, if we so desired it, from having a scrutiny under the 53rd clause of the Act. We cannot come before your Worship and ask that a scrutiny may be had, in order that we may show whether or not the election was affected by the removal of the papers, because we have proved by evidence that certain papers put in the box have rightly or wrongly been removed by the returning officer and destroyed. As we cannot get a scrutiny, I contend that it brings us within sub-section 6 of section 50. The papers should have been left in the box and the case should then have been referred to your Worship to say if there were more papers than should be. Not only has the returning officer not been enabled to comply with the clause of the Act having reference to the sending of all the papers to the Resident Magistrate’s Court, but we have been prevented from having a scrutiny as to whether the election was influenced or not by the proceedings. We can. not have that now because the papers are destroyed. Under the Municipal Corporations Act, I would point out it is provided that only one vote shall be given for auditors. Cumulative voting, it appears from the evidence, was permitted till about eleven o’clock, and must have made some difference. How can any one say —except the returning officer who took it upon himself to say so—that it did not ? It might not have affected Mr Craig or the other gentleman, but still how is any ope to say thatj it could not ? On a scrutiny Mr Craig might have still been found not to have been elected: but I say that the returning officer had no right to remove papers from the ballot box, except according to the Aot. Mr Lee acted bona fide no doubt, but it was an error of judgment, and I contend that it brings us within the sth and 6th sub-sections of the Act. There is no means of knowing whether any voter while these cumulative papers were received, split his votes for different candidates. Mr Lee it is true says that he did not contemplate any one doing so, but still we must not take it for granted that it did not happen, in which case of course it would oome under the sth sub-section of the result of the election having been affected. There is, I would point out to your Worship, particular attention paid to the voting being properly carried out. The Act says that the election shall be declared void if irregularities occur. I contend that there has been irregularities, and such irregularities that your Worship must declare the election void, because we have been prevented according ,to the Act from holding a scrutiny to ascertain whether or not the result of the election was affected.

Mr Cowlishaw —I shall contend first, your Worship, that it is not sufficient for the petitioners to prove that the voting papers taken out of the ballot box in a manner not according to the Act. That is only one point of their case. They are, I submit, also bound to prove that it affected the result of the election. Sub-section 5, on which my learned friond relies, states this distinctly. The onus of proof lies on the petitioners that the result of the election was so affected. The question arises whether these dual voting papers were not merely pieces of waste paper, and that the Returning Officer, when he found that more votes than one had been recorded, was perfectly justified in so acting as only to give one vote to each elector. He tells us that he examined each paper, and that he ivhowud each elector the one vote he was entitled to give. It is a matter for a common sense decision whether anyone would be so foolish as to nullify his votes by giving them in the way my learned friend wishes us to believe they were. In cases submitted to a jury they are always asked whether they believe that such and such a thing could reasonablv have been done, and I contend that your Worship is in the same position, and that it is for you to say whether any voter would so use his papers as to disfranchise himself. It is not at all likely. Even supposing that it were so, the presumption is that the voting would have been for the candidates elected,, aa they evidently were the popular onc'a. Hence it may reasonably bo supposed that they would get the majority of these dual votes if the electors voted in the way we are asked to believe. Bui even so it is matter for proof by the petitioner that these dual votes affected the result of the election. In construing sub-section 5 1 would ask the Court to look at section 51, which sets forth very very clearly the matters of enquiry which '-the court can take up. I say that having entered into the matter under sub-section 5 we have no proof of any other irregularity before the Court, and the onus of proof as to the effect on the election lies on the petitioners, which they have failed to prove. If there was any other irregularity we myat have evidence of it. His Worship—l cannot agree with Mr Cowliabaw that this case is similar to a case pat before a jury. It is far more intricate, because it is full of technicalities. It is more like picking a flaw in an indictment or the direction of a Judge to a jury as to the bearing cf certain facts. In a case of this kind, which is of a technical character, and with which we require to deal on purely technical grounds, it is not fair to deal with assuming. We are not allowed to deal with it on the ground of presuming what was the conduct of each voter as to the disposal of his papers up to the time of the mistake of allowing dual voting being found out. We cannot look on this case as one in which we could bo permitted to assume at all. It is, as I have said, a case full of technicalities. Though the action of the returning officer may not have affected the result of the election, the evidence is plain that the papers were destroyed, and therefore there is no means of ascertaining, without calling on each party who voted under the dual system, to say how he voted, whether or not the papers weye filled up for two candidates only. Eo? these reasons I declare the election void, | The proceedings then terminated.