ELECTION PETITIONS COURT.

Globe, Volume XXIV, Issue 2459, 22 February 1882, Page 3

ELECTION PETITIONS COURT.

: j WAKANUI. [ Tuesday, Febsuabt 21. i [Before their Honors Mr Justice Johnston and I Mr Justice Williams.] , The Court sat in the Town Ball, Bakaia, at ten o’clock. JOSEPH IVBSS V JOHN CATHCART WASON. Mr Stout, with him Mr Wilding, for the petitioner ; Mr Button, with him Mr Geo. Harper, for the respondent. Mr Cri-p appeared on behalf of the Registration Officer and the Returning Officer. Mr Wilding read the petition. The first four paragraphs were of a formal character. The others set forth—s. That four persons named, among others, voted at the said election who were not qualified to vote thereat, being aliens. C. That nine persona named, amongst others, voted at the said election who were not qualified to vote thereat, being persons under twenty-one years of age. 7. That five persona named, amongst others, voted at the said election who were not qualified to vote thereat, being persons who were not duly registered on the Wakanui roll for the time being. 8 That the names of the persons mentioned in the foregoing paragraphs 5 and 7 were cent.ted on the poll for the said John Cathcart Waaon, and they should now be struck off the poll. 3. That there wore seven persons, amongst others, whose votes were disallowed that should not have been disallowed, and that those persons would have voted against the said John Cathcart Wason, and two of them would have voted for your petitioner. 10. That there were votes that had been polled for your petitioner which the Returning Officer disallowed. Clause II went on to object that the election was improperly held in the following respects : (a) That names wero added to the roll after the writs wero issued; (b) That the votes were not duly scrutinised as required by the 41st section of the Regulation of Elections Act ; (o) That the names of a large number of claimants were inserted on the roll before The expiration of fifteen days after the receipt by the Registrar of tho claims, and after the issue of the roll had been gazetted ; (d) That many claimants were inserted on the roll whose names ware irregular, by reason of their not having attached their signatures thereto ; (e) That a large number of persons had their names inserted on the roll without their knowledge, and without their having authorised any person to send in a claim on their behalf; (f) That the names of several persons entitled to vote for the Wakanui district were wrongfully omitted from tho Wakanui roll and placed upon the Ashburton roll; (g) That the names of many persons not entitled under the property or residential qualification wore wrongfully placed npon the Wakanui roll, and that ench parsons voted for Mr Wason and against Mr Ivess; (b) That the votes of the persons named in the ninth paragraph, who would have voted for petitioner and against tho - respondent, were rejected on the ground that tho names wero not in all respects identical with those on the printed roll; and that the votes of other persons, who it is believed voted for the respondent, were allowed to ba recorded under similar conditions. 12. That the Beturning Officer declared the votes at the declaration of tho poll to be —Wason 415, Ivess 435; but if the votes wrongly counted for Wason had been struck off, and the votes disallowed been allowed for your petitioner, yonr petitioner would have been declared duly elected, for yonr petitioner had a teal majority of good and legal votes, voted on the said election in his favor. —Wherefore your petitioner prays, that it may be deter’ mined that tho said John Cathcart Wason was not duly elected or returned, and that hia election and return were and are wholly void, and that yrur petitioner, the said Joseph Ivess, was duly elected and ought to havo been returned, and your petitioner will ever pray. It was alleged on the part of the respondent that many persons voted for the petitioner who were not qualified. Mr Stoat, in opening the case, said the petition might be viewed io two aspects. The first was as tq the effect of unqualified persons voting on the status of tho petitioner and the respondent. The second aspect was as to , whether, owing to the way in which the roll had been made up, there had really been an election or not, and also whether the Court conld hold an inquiry into the method in which tho Return- 1 ing Officer and Registration Officer had performed their duties, and the effect of the performance of those duties on the validity of the election. Tho case for the petitioner might be divided under three heads—First, whether tho Court would consider what might be termed the personal disqualification, euch as in the case of aliens and Maoris ; second, whether they would consider the property qualification of certain voters ; and, third, as to the scrutiny the Court woul i have to make of the votes given. Mr Justice Johnston—lf we can discuss neither the personal or property qualification the question of scrutiny does not arise. Mr Stout said if the Court decided that it , could not discuss either the personal or property qualification, still the petitioner claimed the { seat, because votes had been struck off which ought not to have been; in other words, there were sufficient votes not counted for the petitioner which ought to have been, and others refused which ought to have been allowed, to enable him to claim tho seat, altogether irrespective of the question of aliens and infants, or of the property qualification. Even supposing the register were deemed conclusive the petitioner claimed the seat. He would first mention, with regard to infants and aliens, that proceedings had been taken since the election, and four aliens had been struck off the roll. B e submitted that the Court would be bound by that decision. With regard to the infants, there could be no dispute that they were under twentyone years of age. As to the scrutiny, the question of misnomor would come up. There could be no doubt that the actions ef the Returning Officers had been most pecular. They had allowed persons to vote for the respondent whose names did not correspond with the names on the roll, but were wrongly spelt. Some names had been wrongly struck off. Two persons voted in tho name of Hugh Kennedy. The real elector voted for the petitioner, and the other man who claimed to be Hugh Kennedy voted for tho respondent, and the Returning Officer disallowed both votes. There was another similar case, and these, if added to the two votes referred to in paragraph 9 of the petition, would give a majority of one to the petitioner. The election could ba held to be void on this ground alone—that the Beturning Offi -or had a month after the passing of the Representation Act within which to make up the roll, this would bring the time to October 24th, 1881, and from that date until tho issue of tho writ was the only opportunity for objecting to the names on the new roll. It so happened that tho roll, with the supplementary roll, was not printed and circulated until the writ had been actually issued. Now, anyone who was objected to must havo fifteen days within which to show cause why his name should not be removed from the roll. _ The result was that there was no time to object before tho roll was published, because after a writ was once issued the roll could not be disturbed, ho that if the Court were to hold that the roll was conclusive as to the right of the persons named therein to vote, tho result would be that any one might put hnrd-eds of names on tho roll, and an election could bo held by people not qualified, and the Election Petitions Court would be powerless. There were two rolls in the district—one which was published and gazetted e.rly in November, and a new roll which was not printed or finished until a week after tho issue of the writ. That supplementary roll had never been gazetted, and yet the election had been held upon it. Section 8 of the Representation Act provided that, the roll being formed, notice should be sent to the Colonial Secretary, who should publish a notice in the •’ Gazette.” The election had been held on a roll which was not so sent to the Colonial Secretary, and which consequently could not legally have been used for the election. There was another important point contained in paragraph eleven of the petition, in reference to which it conld ba shown th-t the ro'l was improperly prepared. The paragraph stated that the names of several persona entitled to vote in the Wakanui district were wrongfully omitted from the roll and placed on the roll for another district—Ashburton, Tho e.vidoncc would show that tho Registration Officer had placed a large number of names on tho Wakanui roll that ought to have been on other rolls, and had placed on the Ashburton roll names that should have been on the Wakanui roll. Practically, there was no opportunity of getting the roll amended. Thrio were o*her irregularities. For example, names were added to tho roll after the writ was issued, and tho votes wore not duly scrutinised, as required by section 41 of tbo Act. Section 40 provided that the Returning Officer should give notice of the time and place whore ho would hold hia scrutiny. He gave notice that he would begin tho scrutiny S at ten minutes past six o’clock, and he did begin it at that hour. But it was only a scrutiny of tho votes polled at tho bo.-th where ho himself presided, because it was impossible that the returns from the polling places could havo been in at ten minutes past six o’clock. He subsequently scrutinised the lists sent in by the Deputy Returning Officers, without notice to the scrutineers of the petitioner. He submitted that, to say the least, that was an irregularity. fl 11 these facts, which would be proved, wont to show that tt-ero had been, practically, no election in the district—that thero had been no legal roll, because the roil on which the election was said to havo teen held had not been compiled i Q terms of tho statute. Mr Button was heard in answer to the petition. Ho submitted that if nil tho allegations of tho other sido were proved tbo validity of tho election would not be affected. With regard to aliens, infanta, and persona whose names appeared on the roll, he would contend that tho roil was conolueivo aa to tho right of the persons to vote whose names were upon it. Learned counsel repeated the arguments used in 1 support of this position in tho case of the Lyttelton petition. He submitted that, the roll being deemed conclusive with regard to the qualifies*

tion of a member, it must be so in the ca*e of on election, and also contended; that the jndgment of the Returning Officer was conclusive, and that it was a question whether his conduct c °nld be subject to review by the Election Petitions Court. With regard to the manner in which the roll was formed, if it was prepared according to the Registration of Electors Act, 1879, and the Representation Act, 1881, no tribunal could go behind it, and the roll was so made. The fifth section of the Representation Act, 1881, said that within thirty days anewroll should bo made from the old ones by the Registrar, and then it provided that “ subject to the provisions of this Act, snob rolls, when formed, may be added to as provided in the Regulation of Elections Act. 1879.” there was provision for making a roll, which was made and duly gazetted; but the Act of 1879 made provision for adding to and altering the roll up to fifteen days before the writ was issued. It could not have been contemplated that those additions were to be gazetted immediately, because there would not have been time. With regard to the action of the Returning Officer, and os to whether his acts wore final or subject to review, it must be asked whether he acted ministerially or judicially. In the formation of the roll ho acted ministerially. In judging of tho capacity to vote ho was judicial, and where a judicial act was performed there was no appeal, and no provision mr.de for appeal—it was final. He could not find any oaee in which an election had been voided through tho misfeasance of the Returning Officer, though, of coarse, a Returning Officer could bo summoned to tho bar of the House. To show that the Returning Officer’s judgment was final he would refer to the 29th section of the Regulation of Elections Act, which provided that if required so to do by any scrutineer, ho should, befere allowing any person to vote, put to him certain questions. After putting those questions, he decided whether or not the person was qualified to vote, and in that way performed a judicial act which was conclusive. It was quite clear from the whole scope of the Electoral Acts that the Legislature intended that tho roll should bo conclusive. His learned friend laid stress upon the formation of tho roll. The Lccidaturo had allowed the rolls to be altered within a certain time, and though it might be impossible for a person wihin that time to apply to have the roll rectified, nevertheless the spirit of the Act was that tho roll should be conclusive, and they were not to go outside the clear intention cf the l egislature because certain inconvenience might occur. If they did, there would be the greater inconvenience of the whole district being disfranchised. It was never intended that the supplementary roll shonld ho sent to tho Colonial Secretary and gazetted. Hr Harper addressed the Court on several points in tho case, contending that in all questions whore there was an attempt to open np tho roll the roll was conclusive on the Court as well as on the returning officer, and, if so, it was, « fortiori, conclusive with regard to any wrnng that was committed by the registrar in the formation of the roll.

Mr Stout was heard at length in support of the petition. If the roll was conclusive, and there was no appeal against the action of the returning officer, what was the object of appointing the Election Court? Its functions would only be confined to questions of corrupt practice. The 3rd section of the Election Petitions Act gave the Court power to deal with all questions. The returning officer might allow thousand aof persons to vote whose names where not on the roll, and parsons who were on the roll but who were dead, and was it to be said that the Conrt hal no power to deal with such cases. The arguments cf the other aide on this point were mutually destructive, for it was contended that the roll which was conclusive was the one which was gazetted, but there was a supplementary roll, containing 275 names, which had not been gazetted, and which, therefore, according to the argument of the other side, could not be conclusive.

Mr Button having replied, Mr Justice Johnston said—Wo propose to dissembarrass the case by giving judgment on some points of law which do not require any evidence. Wo are of opinion, after carefully considering the arguments adduced ia the case at Lyttelton, and those which havo been heard to-day, that the objection in respect to the voting of aliens and infante cannot be supported. The language of the 27th section of tbo Registration of Electors Act is to this effect: “ l bat when the roll has been added to and altered from time to time it shall for the time being be the roll for the district for which it is made, and the several persons whose names are on the said roll, and no other person, shall be entitled to vote at any election of a member of the House of Representatives for such district.” It may be true that there is no expressed provisions in tho existing Acts that aliens and infants—or aliens at all events - shall not be entitled to vote, but only that they shall not be entitled to be registered. We think it must have been tho intention of the Legislature to make the register conclusive for some purposes, and among others for a purpose like this : that tho names of persons who might, like aliens, have been objected to, baingjon the register, the matter is not to be further inquired into. Although some comments have been made with regard to the judgment of Mr Justice Blackburn, it seems pretty clear from the report given of the case of Stowe v Joliffe that it was contemplated by the Court there that but for the proviso in the Ballot Act that nothing in the section should entitle any person to vote who was protibited from voting by statute, or by the common law of ParHamt nt —that but for the existence of that section in tho Ballot Act, tho appearance on the rolls of tho names of the parties alleged to be aliens would have been conclusive. After the exhaustive argument we have heard and the great preponderance of authority on the point, we think it unnecessary to go further into the question. The same doctrine will apply to the case of infanta aa to that of aliens. With regard to tho ”th paragraph of the petition wo are not prepared at present to give a decision on the question of law raised by it, and we shall hear evidence for the purpose of ascertaining the actual state of the facta to which we are to apply the law. We shall also be prepared to hear evidence about the 9th and 10 th paragraphs of the petition. With regard to the llth paragraph as to some alleged improprieties, we think they cannot be gone into on this occasion. I do not think it necessary that we should decide at present on sections A and B. We wish to receive evidence on the subject of the names added to the roll after tho writ was issued, and test the evidence, to see what effect it onght to have upon the construction of the law. So also with regard to C. We think thst O, D and E, are matters which it was quite within the competency of the Registrar to do under a prevision in section 6 of tho Registration of Electors Act, 1879, which gives him power to make the roll as complete as possible, and with that object from time to time to add thereto tho name of any person of whose qualification as an elector he was satisfied.

Mr Stout, referring to section E of paragraph 11, said it was a corrupt practice to send in claims without authority, and quoted the 28th clause of the Corrupt Practices Act. Mr Justice Williams remarked that the registration officer, if he thought the persons entitled to vote could place their names on tho roll, no matter by whom the claims wero sent in.

Mr Justice Johnston said the paragraph referred io contained no allegation of corrupt practice. Mr Stout said it was intended to allege corrupt practice, and Mr Harper denied that tho respondent had so regarded it. Mr Justice Johnston—With regard to clauses F and Q those ara cases we cannot go into. Mr Justice Williams quite agreed that tahing the Acts together, and especially having regard to section 27 of the Registration of Electors Act, 1879, the register was conclusive as to tho right of the persona who were upon it to vote. Tho Legislature had made the roll final by tho section j ost referred to. It had provided moans for striking off tho roll persona who ought not to he there, and it bad fixed a period—the iasne of the writ - beyond which no additions could ba made to the roll. It might happen that sufficient time was not allowed to enable candidates to review the roll and get objectionable persons struck off. That might ba a misfortune, but it would bon still greater misfortn e if the Court were to decide that in every case after an election persons whose names were on the roll could be impeached for want of qualification. For that reason he was of opinion that all the allegations in tho petition which sought to open up the roll must fail. Mr Stout then offered evidence in support of tho petition. William Stevens, a farm laborer, residing at South Rakaia, deposed that ho voted at tho Bakaia polling place. He sent in a claim to vote, but did not know whether he was on the roll. Never lived at Wheatstone, and it there was a William Stevens, of Wheatstone, he was not that person. C. P. Cox, Registration Officer for Wakanui, produced tho roll. There was only one William Stevens on tho roll. Tho name was taken from the old Coleridge roll, and no claim had been sent in. Alexander-T. Rutherford, Record Clerk of the House of Representatives, produced the rolls and voting papers nsed at tho election. William Btevens, laborer, residing at Wheatstone, deposi d that he voted at the election, at tho Longbeach polling place. Hugh Kennedy, farmer of Wakanni, said ho voted at the County Council polling. Did not send in any claim, bnt expected to bo transferred from tho old Coleridge roll. Did not know any person named H. B. Kennedy, and had lived in tho district for ten years. Hugh Bergm Kennedy deposed that he voted at tho Longbeach polling place. His name was on tho roll, and he sent in a claim to ba registered. Was never on tho Coleridge roll. C. P- Cox recalled, said tho only Kennedy on tho roll was Hugh B. Kennedy. He took the name from the Coleridge roll. He did net register tho claim sent in, because he thought the person was already on the rell. Daniel Buckley, farmer, living at Kyle, de-

posed that ho voted at the Seafield booth. The name on the roll was David Buchley, but the Returning Officer allowed him to vote as Daniel Buckley, as the number of the sections proved that he was the man. Daniel Buckley, nephew of the last witness, said he voted at the Saleyards, Ashburton. Was registered, and his name was on the roll. Thomas Stevenson, of South Bakaia, deposed that he voted at Bakaia. He sent in a claim to vote about six weeks previously. Thomas Stevenson, of South Bakaia, said be made a claim to be registered, but did not vote, because the Beturning Officer told him that a Thomas Stevenson hud already voted. Mr Cox deposed that the claim sent in by the last witness was registered. He did not know of any other claim sent in by Thomas Stevenson.

Malcolm Miller, farmer, living on the north side of Ashburton, deposed that he sent in a claim to vote in respect of certain sections of land. Voted at Wakanui. Did not know whether he was on the roll or not. Mr Cox produced the Ashburton roll. The name cf Malcolm Miller was on the roll as a freeholder. There was no Malcolm Miller on the Wakanui roll, There was a Matthew Miller on the Coleridge roll, whom he believed was intended for the last witness. There was a Malcolm Muller on the Wakanui roll in respect of a residential qualification. Names were placed on the roll up to the time when information was received of the issue of the writ, but none were registered after the issue cf the writ.

At this stage the Court adjourned until this morning at ten o’clock.