ELECTION PETITIONS COURT.

Globe, Volume XXIV, Issue 2460, 23 February 1882, Page 3

ELECTION PETITIONS COUR T.

WAKANUI. Wednesday, Febeuaby 2 i [Before their Honors Mr Justice Johnston and Mr Justice Williams.] The Court sat at 10 o’clock. JOSEPH IVBBB V JOHN OATHOART WABON. Mr Stout, with him Mr Wilding for the petitioner; Mr Button, and with him Mr G, Harper for the respondent. Mr B. &. Crisp appeared for the Beturning Officer (Mr Jamieson), and for the Begistiation Officer (Mr Cox.) The hearing of this case was resumed, and evidence taken in support of the petition. James Banty deposed that he lived in South Bakaia and was a laborer. He went to the town hall polling booth at the late election. The Beturning Officer said the name on the roll was “Sanfz” and refueed_ to allow witness to vote. He had sent in a claim. Heard Mr Winter, a scrutineer, say at the booth that he (witness) was the man right enough, »• Cross-examined The Beturning Officer did not ask him the question whether he was the man named in the roll. There was no man named “Santz” in the neighborhood. Mr Oox, the Begistration Officer, recalled, produced a claim to vote. The name “James Santz ” was placed on the roll from this olaim. James Banty, recalled, said the signature to claim produced was his. It was made in the presence of Mr Ivess, Thomas Alexander Winter deposed that ho was scrutineer for Mr Turned at the late election. Saw the last witness at the polling booth. He came to vote and gave his name as James Santy, Witness objected to his voting because his name wae not on the roll. The name James Santz was on the roll and he claimed to vote under it, but the Beturning Officer refused to take his vote. James Santy, recalled, said he did not claim , to vote as James Santz, but because he believed his name was on the roll, having sent in a ; olaim to be registered. { Mr Winter’s examination wae resumed— ■

Did not know any man named Santz in South Bakaia. Had lived in the district for many years, and knew James Santy, but did not know any one with a name like his. He might have remarked at the polling booth that the name Santz was meant for Santy. The Beturning Officer refused the vote because he said the name was not on the roll. Patrick O’Malley deposed that he lived at Bakaia, and had resided there for about seven years. He did not always use the “O” before his name. He was a platelayer, and was registered as a laborer. Did not vote at the Wakanui election. Came to the Town Hall booth to vote. The Beturning Officer (Mr Boyle) asked him for hia name, and he said “ Malley.” The Beturning Officer said, “ * Malley ’ is not on the roll j there is an ‘O’Malley.’ ” Witness then claimed to vote as "O’Malley,’’ but the Beturning Officer told him to stand aside. Thought he meant that he was to stand aside for a time and ho remained, bat the Beturning Officer told him he would not take his vote. Then went home and returned at about twelve o’clock with some papers showing that his name was O’Malley, but the Beturning Officer still refused to take his vote. He applied to vote again at about a quarter to six, but was refused. Did not know any other Patrick O’Malley or Patrick Malley in South Bakaia. Had sent in a claim to vote. Cross-examined by Mr Harper—During the seven years he had lived in South Bakaia he had mostly gone by the name of Malley. Signed himself Malley, but not always. The claim was signed, “ Patrick O’Malley ” by his daughter. The Beturning Officer did not say he would let him vote if he could get anyone to identify him. Did not remember Mr Winter saying in the polling booth that his name was Malley. Patrick O’Keefe deposed that ho was a

laborer residing at South Bakaia. He remembered sending in a claim to vote. He oonld not write, and got his little boy, ten years of age, to write it. The boy’s name was James O’Keefe. Went to the Town Hall polling booth to vote at the late election. Mr Winter and the Beturning Officer were present. The latter asked him his name, and he said Patrick Keefe. The Beturning Officer said that would not do ; it was James O’Keefe who was on the roll. Ha went away and came back in the afternoon, and said he knew he was the right man, as there was no other O’Keefe in the district and be was prepared to make an affidavit to that effect. Mr Button said if his learned friend would prove that the son of the last witness signed the claim James O’Keefe in mistake, he would be prepared to admit that this vote was wrongly refused.

James O’Keefe, son of the previous witness, deposed that be signed his father’s claim to vote as “James O’Keefe.” Was told that was the proper way. Michael Sullivan, ploughman and laborer, deposed that he lived at Seafield for about seven or eight months. He voted at Seafield at the late election. His name was registered as “Michael Sullivan, Seafield, ploughman;” and he voted on that qualification. Michael Sullivan, laborer, deposed that he lived at Longbeach at the time of the election. Was a ploughman. Voted at the Longbeach polling booth. No questions were asked him. Did not know any Michael Sullivan, laborer, living at Ashburton. Sent in a claim to register. Had since found out that his name was on the Ashburton roll. Mr Cox, re- called, said that the Michael Sullivan on the Wakanui roll was the one first examined, who resided at Seafield. John Maokle, laborer, South Rakaia, said he had lived there for five years. Was registered as residing at Rokeby Station. Voted at the town hall polling booth. There was no other man named John Mackle in the district. Mr Stout said that a man voted at Ashburton in the name of John Mackle, and in consequence of that both votes were struck out. that of the lost witness wrongly. Mr Harper submitted that it would be necessary to prove this. Joseph Ivess, the petitioner, deposed that he knew a man named Mackle. His name was Henry or Hugh. He was not the last witness. Had issued a subpoena for his attendance, but it could not be served upon him, as he evaded it, Mr Stout pub in evidence two electoral rolls —one used at the Town Hall booth and the other at Ashburton—from which it appeared that a vote had been recorded in each under the name of John Mackle. James Wilson deposed that he had been five years in the district. Voted at the Wakanui election. Had voted at the previous election for the Coleridge district. Before the present election he called at the Registration Office and asked Mr Cox if his name was on the roll, and he said it was. Did not know any James Wilson in the district with “J.W. J. ” after his name Knew no other James Wilson besides himself but the one in Court. Mr Cox recalled, deposed that he obtained the name “James Wilson, Wakanui, farmer, freehold 150&,” from the claim to vote. Tha name of the other James Wilson on the roll he transferred from the Coleridge roll, where it appeared as “ James J. W. J. Wilson.” He did not know of any “ James J. W. J.

Wilson.” Did not reoolleot where he got that name from originally, Mr Stout said he had now exhausted the names mentioned in paragraphs 7,0, and 10. With regard to paragraph 11 "he presumed the Court would al ow him to call evidence under section B, which alleged that the votes were not duly scrutinised. Mr Justice Williams —If you proved the allegation it would not necessarily set aside the election, unless the result would have been affected by it. If it were suggested that the absence of the scrutineers affected the result, or even perhaps without a suggestion, the Court might have the votes recounted, but I don’t think we could go beyond that. Mr Stout would be content if the Court would scrutinise the votes. With regard to section B —that the names of persons were inserted on the roll without their knowledge or authority—ho understood that tho Court ruled againat him. Mr Justice Williams—My opinion is that even if it be the case that some outsider puts a person on the roil without his consent, still if the name is on the roll and it does not appear that tho person had not the qualification, then that person can vote. Mr Harper suggested that a short adjournment should take place at this stage, to enable both sides to consult as to tho issues that remained. Borne discussion ensued, in the course of which his Honor Mr Justice Williams remarked that the respondent wan declared returned by a majority of ten. If there were ten votes improperly rejected, or, in fact, if tho result of the election could have been altered, then the Court would have to say that the election was void; If it appeared

that there were votes that ought to reckon for the petitioner— vote* which were actually polled for him, but which were not allowed by the Returning Officer—if there could be proved to be more than ten of auoh votes, and that tte election wai not void, then the petitioner would be entitled to ha returned. After a abort adjournment, Mr Button said it was agreed that there was no necessity to go into the question of putting the votes to the scrutiny, but that the facts as proved in evidence should be taken as if they had been conclusively proved, subject to the opinion of the Court on the question of law as to whether or not the Returning Officer’s judgment in the matter was conclusive.

Mr Justice Williams—Supposing it is not conclusive ? Mr Button—Then it is agreed that the election shall be declared void. Mr Justice Williams—You may agree not to argue tho point, but the Court will have to satisfy itself from the evidence that the election was void. Mr Stout said the position was this—The petitioner claimed that the election was void on the ground that certain votes were not counted for him that ought to have been, and that certain persons wore refused permission to vote. It was admitted by the other side that if he was right in law he was right in his facts in this respect—that if those votes had been counted, and if the four votes which had been refused had been allowed, it would bring the numbers so near that Mr Wason would not be in a majority. He would read a list to show the votes that should have been counted for the petitioner. First, there was that of Hugh Kennedy. There were two Hugh Kennedy’s. One voted for Mr Ives* and the other for Mr Wason. Both votes were disallowed. Only one should have been disallowed, leaving the legal rote to be counted for Mr Ivess, The next name was that of Daniel Buckley. There were two Buckley’s—uncle and nephew—who voted at different polling booths. Both voted for Ivess, but the clerk only placed the mark against one name, and the result was that both votes wore struck off. Michael Sullivan was the next. There was only one Michael Sullivan on the roll. Two voted for Mr Ivess.

Only one had a right to vote. Both votes were disallowed. It was claimed that one vote should be granted for Mr Ivess. The next case was that of John Mackle. He voted at Bakaia for Mr Ivese. Another Mackle, not named John, voted at Ashburton on the same qualification. Both votes were disallowed. It was claimed that the true John Mackle should be granted for petitioner. In the ease of William Stevens there was only one name on the roll j two men voted and both votes were disqualified. The petitioner claimed the vote of the one that was on the

roll. It was also claimed to deduct from Mr Ws ton’s number the vote of Malcolm Miller, on the ground that he was not registered, his name having been put on the Ashburton roll; and also the vote of Thomas Stevenson, on the ground that the Thomas Stevenson who voted was not the Thomas Stevenson who was registered. This would reduce Mr Wason’s majority from ten to one. Then there were four voters whose votes were refused—Santy, O’Keefe, O’Malley and Stevenson. Assuming that these persons would have voted for Mr Ivess, that would give him a majority of three over Mr Wason.

Mr Justice Williams said it would be necessary for the Court to refer to the ballot papers to see how the persons named had voted, Mr Stout then addressed the Court. His contention was this that where the conduct of the returning officer had been such as to have a possible effect on the result of the election the Court would always declare the election void. There were numerous cases in which that principle had been acted upon, including that of Beg. v Ward, L.E. 8, Queen’s Bench, and also in 42 L.J., Q.B. 126. In the case of Beg. v Tesohemaker, tried in Dunedin, the same doctrine was laid down—that in granting a writ of quo warranto the Court must see that a probable injury had been inflicted. Although in this case the Court had ruled

that he could not ask the witnesses for whom they voted, still he contended that as the result of the election might have been affected if certain men had been allowed to vote, the Court could not hold that it was a due election within the meaning of the Election Petitions Act, and in dealing with this petition it had really to decide that the elec-

tion had been a due election. If the conduct of the Returning Officer had been inch as to deprive person* of their right to vote, the Court could not hold that it had been a due election. The Returning Officer might refuse a poll altogether, and declare whom he liked elected. He might have refused not four votes, but 400, Therefore the question was, Was the Returning Officer's decision final f Unless the Oourt was prepared to hold that it was, it should declare the election void. There was nothing in the Act which made the Returning Officer’s decision final on any question.

Mr Harper was heard on the other side. He contended that it should have been proved that the persons whose votes were refused first asked the Returning Officer to allow them to vote as representing the per* sons on the roll, although the names were different. He quoted from Rogers on Elec* tions, p. 294, in support of this contention. With regard to section 42 of the Regulation of Elections Act, he submitted that that section gave power to the Returning Officer to pass judgment in respect to the persons whose votes had been disallowed.

Mr Stout on this point submitted that the only power given to the Returning Officer to refuse a vote was contained in the 29th section of the Regulation of Elections Act. Mi Justice Johnston said the Oourt proposed to go through the ballot papers to satisfy itself as to how the different persons voted.

Mr Rutherford, for the clerk of writs produced the voting papers which had been set aside by the Returning Officer. Their honors retired in order to go through the ballot papers, and after a short absence returned into Court, when Mr Justice Johnston delivered judgment as follows:—We have deemed it our duty to examine the evidence minutely in each case that has been brought before the Court, because we are of opinion that it is necessary that the Election Court should satisfy itself on evidence, without simply taking admis-

sions, not from any doubt as to the bona fides of the parties conducting the inquiry, but to satisfy ourselves that we are doing our duty to Parliament in seeing that the case is properly disposed of. We have already determined the question with regard to aliens and infants, and what wo have to deal with now is, whether on all these other charges we are satisfied that the election is void; or, if we are not satisfied that the election i* void, whether there is enough to show us that the petitioner is entitled to the seat. Now, it must be conceded in the argument that there is no ground for suggesting that the petitioner can claim the seat; but we are quite clear upon the whole—though it come# to a rather nice balancing of votes —that tho election is void, and that we must declare it to be so. We have treated the case thus—We find that in addition to the votes that were given to Mr Ivess one vote ought to be allowed in respect of Hugh B. Kennedy’s claim, he being the person who was entitled to vote, and he having voted for Mr Ivess. With regard to the two Buckleys, it seems to us that both were entitled to vote. The doubt about one of them arises merely from the question of misnomer. But we are satisfied that tho person on the roll as David Buckley sufficiently identified to be one of tho Daniel Buckleys who did vote. Therefore we think these two votes ought to be allowed to Mr Ivess. Then with regard to the two Michael Sullivans. Two voted. Only one had a right to vote, and ho voted for Mr Ivess. Both were disqualified. That is another vote which ought to be counted for Mr Ivess. Then there is John Maokle. Two persons voted in respect of one qualification, and both were disqualified. But tho one who had the qualification voted for Mr Ives That gives five additional votes that ought to be attributed to Mr Ivess, making his total 440. Then we have ascertained that the admission by Mr Wason’a counsel is a correct one, that there ought to bo struck off of the votes that were given for him those of Malcolm Miller, Thomas Stevenson, and William Stevens, That would be three to deduct from his total of 445, leaving 442 That would make the state of the poll—lvess, 440 j Wason, 442. But then we have to look at the name* of those persons who are on the roll, who tendered their votes and were refused to be allowed to vote, and whom we think ought to have been allowed to vote. The first of those is the proper Thomas Stevenson. It may bo somewhat doubtful whether there was a sufficient tender of Santy’s vote as the vote of the person called “Sanfz ” on tho roll. I have little doubt myself, but my Brother William thinks it is rather doubtful. Fortunately there are two to spare.

We hare no doubt about Thomas Stcvensonjj we hare no doubt either that the identity of Patrick O’Keefe was made out, and that ho claimed to vote under the title of the Keefe that was on the roll. We have no doubt also that Patrick Malley tendered himself as being the person on the roll. Therefore, even without Santy's vote, there are three persons as to whom _we do not doubt, there being only a difference of two between the total votes. We cannot say what the result would have been had those persons been—as they ought to have been—allowed to vote. Wo are, therefore, of opinion that the election is void. There may have been some laxity about the manner in which the rolls wore prepared, but there is nothing before the Court to impeach in the slightest degree the conduct of the officers, and nothing is charged in the petition. As regards cos!.’, they must follow the event. The petitioner will be entitled to his costs, and I do not think there is any case for suggesting that fresh costs have been thrown upon the respondent ire consequence of the petitioner claiming nob only that the election should be void, but that he himself should be declared elected.

_ Order made for general costs of the petition, costs not to be allowed in regard to the allegations which were not successful. The Court then adjourned.