THE LYTTELTON ELECTION PETITION.

Globe, Volume XXIV, Issue 2453, 15 February 1882, Page 3

THE LYTTELTON ELECTION PETITION.

Tuesday, Febeuaby 14. [Before their Honors Mr Justice Johnston and. Mr Justice Williams.] The Court sat in the Oddfellows’ Hall, Lyttelton, at 10 o’clock, in the matter of the petition of William Hollis against the return of Harry Allwright for Lyttelton. Mr Harper and with him Mr Button appeared for the petitioner, and Mr Holmes and Mr Cowlishaw for the respondent, Mr H. N. Nalder appeared on behalf of the returning officer.

The petition alleged that at the ejection of » member to represent Lyttelton in the House of Hepresentatives held on the 9th December last certain persons voted for Harry Millwright who were aliens and not qualified to vote; that tho said Harry A 1 wright thereby obtained an apparent and colorable majority over Edward Richardson, who in reality hud a majority of legal votes, and was duly elected, and ought to have been returned. The petiti ner therefore humbly prayed that it might be determined that the said Harry Allwrisht was not duly elected and returned, that his election was null and void, and that the said Edward Richardson had & majority of legal votes. The respondent, in reply, alleged that many persons voted for Edward Richardson who, being aliens, were incapacitated from voting. The Registrar ra.d the “ Gazette” notice, appointing tho Judges to try the petition. Mr Harper in opening the case, said that ihtr number of persons objected ' o by the petitioner was sixty, and those or jectod to by the respondent numbered seventy-one. Both parties admitted that the majority of the persons named were aliens, and there were cei tain names left in dispute. The petitioner would be bound to prove that the following persona who had voted were aliens :—James Anderson, Daniel Barry, Christian Robert, Edmund Hatliek, William Roder, Peter fcimmons, E. J. Shaddock, Charles Smith, Charles Morland, Gregory Martan. Ha did not know whether it was intended to go on with the evidence as to tho questions of fact, or take tho argument on the point of law first. Mr Justice Johnston said the Wakanui petition, which raieed a similar point of law with regard to aliens, won d shortly come on for hearing, and it would perhaps not be desirable for the Court to give judgment in this case until it had heard the argument in the other. If it did it might possibly happen that two different decisions would be given, and as there was no prevision for appeal that would be very awkward. In these circumstances, he would suggest that they should take tho a-gament on questions of Lw and then adjourn the Court to a fatn-e day, when judgment would be given on. the points of law, and, if necessary, evidence taken on the questions of fact. Learned counsel on both sides agreed to this suggestion. Mr Holmes then addressed the Court in answer to the petition. He would first call attention to two sub-sections of the Qualification of Electors Act, 1879. Subsection 3of Clause 2, referring to the disqualification of certain Maoris, said they would not be allowed t» “ register or to vote ” The fourth subsection, referring to the disqualification cf aliens, said they should not be entitled to be registered. It tho Legislature intended that an alien who had been pi iced on the roll should not be allowed to vote it would have said, as in subsection 3, “No a'icn shall bg entitled to register or tovote.” The next Act he would refer to was the Registration of Electors Act, 1879, the schedule of which contained a form of the claim to vote. It would ha observed that in that claim no statement was required that the person was anaturalised subject. The only statement he was required to make was that ha had resided in the colony for twelve months, and in the electoral district for six months, previous to the election. Thou sections 26 and 27 provided the mode in which the rolls should be made up, and the Act said, “ The rolls so formed, added to and altered from time to time shall for the time being bo the roll for the district for which it is made, and the several persons whose namea are on the said roll, and no other person, shall beentitled to vote at any election cf a member of the House of Representatives for such district.” Now the contention cf the respondent was that section 27 made the roll crnclusive as to th» right to vote, ardin order to show that that was the intention of tho Legislature, he would direct attention to the Fleet kn Petitions Act, 1858, which he would contend was still unrepealcd, Mr Justice Johnston Do you say Mr Eolmes that that Act has cot been either expressly or virtue lly repealed ? _ Mr Holmes—Yes, your Honor. The Election Petitions Act, under which the present proceed, iugs were taken, merely said that a petition complaining of an undue return might he addressed to the Chief Justice of the Supremo Court. There was no compulsion. The Act of 1858 being still in force, advantage conld ha taken of it it any petitioner chose, and it was now optional either to present a petition to Parliament or to the Elections Petition Court. Srction 38 of the Act of 1858, contained tho following proviso—“Provided always, that the electoral roll shall bo deemed and taken to be conclusive evidence that the persona therein named wore dnly qualified to vote.” Mr Justice Johnston Do you contend that that applies to electoral rolls under statutes passed subsequently ? Mr Holmes said he was merely tracing the history of legislation on tho subject in order to show the intention of Parliament. The Registration Acts existing in 186 i and 18G4 were almost in similar terms to the Registration Act nowin force. There was also then an Aliens Act, which made the disqualification of these persons much stronger than was the case under the present Act, it said that an alien should not bo registered and should not vote. He was now tracing the history cf legislation on thii subject to show that, so far as aliens were ccncarued. the Legislature had been gradually enlarging their privileges and giving them bit by bit tho rights of naturalised citizens.

Mr Justice Johnston—But do yon mean to say ttat in the Acts intermediate between 1858 and 1831 there is no virtual or expressed repeal of the Act of 1853? In Mr Kernan’s book tha Act is not amongst those in force. Mr Holmes said it was not amongst the repca’ed Acts. Mr Justice Johnston—Then yon suggest that (hat Act being in force, the two modes of proceeding in regard to election petitions still co-exist.

Mr Holmes—Yes, your Honor ; and inasmuch as the Act of 18 ; 8, in giving jurisdiction ta a Committee of the House, stated that the electoral roll shall be conclusive, and the persons named therein bo deemed to be duly qualified, the Ccu-t, without very express legislation, will not assume that powers exceeding that are given by the present law. Mr Justice Johnston—l was certainly under the impression that the tribunal now sitting was appointed to supersede what was considered the inconvenient ard ol jec'.ionable pl«n of referring these petitions to a Parliamentary committee. I thought this tribunal was intended to swallow up tne other. Mr Holmes—There is nothing in the preamble o fthe Act to show that such was the case. The tact remains that there is no repeal of the Act of 1858. In order further to show that it was the intention of the Legislature that the electoral rolls should bo deemed as conclusive, and to prevent anything like what was called opening

tho register, he would refer to the 43th section of the Registration of Elections Act, 1858. Mr Harper—Mr Neman has put vhut Act down amongst the obsolete Acts. Mr Holmes said Mr Kernan was net the Court, and ha contended that it was not an obsolete Act. According to tho section ho hart mentioned, even thoush a vote was questioned and an appeal was pending, it tho person wore to vote his vote could not bo challenged, though ha might eventually bo struck off tho roll. The same question was also referred to in tho Registration of Hectors Act, 1833, sret ou -18 of which was a transcript of tho section just quoted. Therefore in the E notion Petitions Act, 1858, the Registration of Hectors Act, 1858, and the Registration. Act, 1833, the roll was not to bo questioned, and ho submitted that no subsequent legislation hid altered that state of things ; that the V lection Petitions Act, being still in force, and the hart quoted uurepealed, it would gnido tho Cou:t m giving a construction to section 27 of tho Registration of Electors Act, 1879. With reference to the courte of legislation on tho subject of aliens—as to whether it had become more liberal or more restricted—section 8 of the Constitution Act provided that no alien should be entitled to vote at an election. This disqualification was removed by the Electoral Acts Repeal Act, 1879. The Aliens Act, 1880. also omitted to insert any disqualification with regard to aliens voting. The only di.-qualification now placed upon aliens waa that contained in the Qualification of Electors Act, where it provided that they could not be registered. Tho prohibttion with regard to voting had been absolutely and distinctly removed by tbo ligislation of the last two or three years. Ho would now refer to the English law bearing on the subject, and would compare the Ballot Act of 1872 with the 27th section of tho Qualification of Electors Act, 1879. Section 7 of the Ballot Act said. At any election for a county or borough a person shall not be entitled to vote unless his name is on the roll of voters in force for such county or borongh, and every person whose name ia on such register shall be entitled to demand and receive a ballot paper ■vote.* * Now eecfcioa 27 of tho New Zealand Act said: “And tho several persons whose names are on tho roll, and no other person shall bo entitled to vote.” 'I ho words of the latter Act were stronger, because the exception came in—no persons except those on the roll should vote. Tho English Act said, provided thnt nothing in this section shall entitle any person to vote who ia prohibited from voting by any statute, or by the common l iW of Parlia* ment.” Even if thnt provision were in the New Zealand Act, it would not prevent aliens from ■voting under tho authority of a esse ho was about to quote, because our Act only prohibited aliens from being registered. 'I bo case on which he relied was that of blows v Joliffe, contained in tho Haw Reports of C immon Pleas, p. 731, and in which it was laid down that the register was conclusive not only on the returning officer, but on every tribunal of inquiry into elections. If the register could be opened in the case of aliens, it c-uld bo opened in all cases of disqualification, .and that, of course, was never intended. It was argued in the cose of Stowe v Joliffe, ns it might be in this, that the effect of the opening of the register would be to interfere with tho secrecy of the ballot. From tbo year 18i8 until 1879, the whole tendency o! tho ■statutory enactments bad bean to make the register conclusive The learned counsel quoted and commented at length upon the case of Stowe v Joliffe, and also cited McLaren v Miller, 44 Law Times, p. 289. and other cases. Mr Harper submitted that his learned friend was not quite correct in his remarks with regard to the progressive legislation on the subject of aliens. When the Electoral Acts of 1879, which, together with the Regulation of Elections Act, ISBI, and the Representation Act. comprised the whole of the law on the subject of elections, wore passed, tho Aliens Act of 1836 was in full force and effect, and in that Act there was a proviso that no alien should bo entitled to vote at an election The Legislature, when it passed thn Qualification of Electors Act, 1879. must have known that that was the state of the law. That be ng s ■), he submitted that the Legislature rather wished to restrict the rights of aliens still more. They knew that aliens were not entitled to vote under the Aliens Act, and they made it quite sure that they should not even get on the register, by enacting that they should not be entitled to be registered. The Aliens Act, 1836 was repealed in 1689, but ha submitted that even under tho Aliens Act, 1880, there was at least an inferential prohibition of aliens from voting. Tho fair reading of that Act was, that until Letters of Naturalisation wore issued to an alien, ho could not enjoy tho rights and capacities _ct a natural bora sul-j-ct, except of course" with regard to property, Ha submitted that it was a fair conclusion to arrive at that when the Act of 1880 wns drafted it was borne in mind that the Aliens Act of England prohibited aliens from enjoying tho Parliamentary franchise, and it was also borne in mind that there was a direct Act of our own Legislature then in fo.co, which prohibited an alien from being registered, which was tho first step towards obtaining tho franchise. He denied that there was any evidence of an intention on the part of tho Legislature to place aliens on an equal footing with regard to the franchise as the ordinary subjects of her Majesty, and contended that, taking all tho Electoral Acts together, there was what was tantamount to a prohibition more powerful than that contained at the end of clause 7 of the Ballot Act of 1873. This clausa enabled tbo TBgistrar to appoint a scrutiny to take place when any persons con’d be brought within the proviso to that section. The case of Stowe v Joliffe showed that that could be done, and thnt there waa a strong distinction drawn between persona who had only a transitory incapacity and those who had what was called an inherent incapacity to vote. Up to the year 1879 it was possible for an alien to get on to the roll, but he was prohibited from voting only by tho Aliens Act, 1866, and tho Constitution Act. 'lhero waa no direct prohibition contained in any Act in force in England with regard to the registration of aliens. That was tho reason for placing the proviso at the end of section 7 of the Ballot Act of 1872 _ It waa possibly contemplated that aliens might pass through the Revising Barristers’ Court, and be placed on the roll, but it was intended then that, they should ha prevented from voting, and hence the proviso, which was directed entirely to the voting and not to the registrat’on. The group of Electoral Acts passed in 1879 must bo read in pari materia, as having reference to tho same subject matter, and he submitted that what was said to be a direct prohibition in subsection 4 of clause 2 of the Qualification of Electors Act ran and continued throughout the whole Act. The words “no alien shall be entitled to register” must govern and be read with the rest of the section relating to tho manner in which tho registration of electors should take place With regard to the Act of 1838. quoted by his learned friend, whether it had been repealed or not, and whatever might be its effect with regard to the electoral roll b’ing conclusive, under tho Acts than in force there was no prohibition as now against an alien being registered. There was simply a general prohibition under the Constitution Act, and a particular one ■under the Aliens Act 1866. against an al ; en "being entitled to vote. Therefore tho argument based on that Act ns to the roll being conclusive might have had more weight if there had been no prohibition with regard to an alien being registered. He submitted that there was a direct prohibition in the case of aliens, and no getting on to the roll ctnld cure that prohibition. That was the manifest intention of the Legislature in using tho words employed. They struck at the root of the matter at once. Before it was doubtful, An alien was only general y forbidden to vote. But tho Legislature in that Act said that he should not bo entitled to be registered; and he submitted that when it could be proved, as in this case, that aliens had get on the roll, that they were aliens now and wore aliens then, the prohibition continued, and their registration was, in effect, a nullity. It was as if they were not on the roll at all He also con■tended that there were no words in the New Zealand Acts to the effect that the electoral roll should be conclusive. If it was com lusive, it was only so with regard to those who had a transitory incapacity, anrt not those who. like aliens, convicts and infants had an inherent disqualification. Persona having a transitory incapacity were those who claimed under freehold, residential, and other acknowledged qualifications. If the legislature had intended to make the roll conclusive. they would have adopted the wording of the Ballot Act, 1872, and left no questions to be asked by the returning officer. It was clearly the intention of Parliament that an alien should not be registered, and if registered, should cot vote. The learned counsel cited numerous cases in support of his argument. Mr Holmes replied. Tho Court reserved its decision on tho point of law, and adjourned until tho 23rd instant, at H o’clock.