INTERESTING JUDGMENT.

Hauraki Plains Gazette, Volume XXXIII, Issue 4430, 21 June 1922, Page 3

INTERESTING JUDGMENT.

PLAINS COUNTY POLL. RETURNING OFFICER’S declaration. UPHELD BY JUDGE. At the Supreme Court at Auckland op Monday morning his Honor Mr. Justice Stringer delivered judgment in the cas,e of Thomas Leonard and others v. John Hearsey Salmon, S.M., and the Hauraki Plains County Council. At the original hearing Mr. Garland appeared for the plaintiffs and Mr. H. P. Richmond and Mr. L. P. Leary for defendants. "The Hauraki Plains County Council having proposed to raise a special loan of: £30,000 for the purpose of certain public works, a poll of the ratepayers, as required by the Local Bodies Loans Act, 1913, was taken upon such proposal," said the judge. “The poll was taken on January 18, 1922, when 398 votes were cast in favour of and 285 against the proposal. On February 23 the plaintiffs filed a petition for inqui.y in the Magistrate’s Court at Thames, and the hearing pit. the petition was fixed for March 7, on which date the defendant, John Hearsey Salmon, refused jurisdiction on the ground that, the petition had not been filed within the time limited in that behalf. "The plaintiffs claimed that the magistrate was wrong in bpldihg that he had no jurisdiction to hear the petition and applied for a writ of mandamus to compel him to do so. The cnly question to be determine! was whether or not the petition was filed within the prescribe! .time, as, admittedly ,if it .were filed in time the magistrate had jurisdiction, and ought to have exercised it, but, if an the other hand the. petition was out of time, .the magistrate had no jurisdiction, and rightly refused to hear and determine it. The determination of the question involved depended upon the construction of certain sections of the Local Elections and Polls Act, 1908, and its amendments, and of tne Local Bodies Loans, Act, 1908, whicn sections were somewhat confused and perplexing. "In general the whole procedure of takipg a poll," said His Honor, "other than an election, was conducted by the returning officer under the appropriate provisions of the Act just mentioned In the case of a poll to be taken under the Local Bodies Loans tin respect of the raising of al special loan under that Act, there were, however, certain provisions ip connection therewith the performance of which was cast upon the local authority proposing to raise the loan. The local authority has to obtain the consent of the ratepayers. These preliminary steps having been taken it was necessary that a ppH of ratepayers should be taken, and cast, upon the chairman of) the local authority, and not upon the returning officer, as was the case in ordinary polls, the duty of publishing in the manner prescribed, a notice setting forth the day on which the poll was to be taken.” "It would be seen that the returning officer, did not formally declare that the proposal had been duly carried. I think he should have done in the same way as he is required by the section to have declared the candidate in an election who had received the highest number'of votes to be duly elected,” said His Honor. “Nevertheless, he having ascertained and declared publicly the number of votes for and against the proposal, showing that the terms of the section had been complied with, there was, in my opinion, no necessity for a formal declaration that the proposal had been carried. In other words, the publication of; the number of votes recorded for and aganist the proposal was in itself a sufficient declaration.’’ He considered the section in question in no way interfered with, or modified, the duties and functions of the returning officer. He was the official who conducted the poll, supervised the scrutiny of the rolls, opened the voting papens, and counted th-’ votes, and he, therefore, was the only person who ’could make in the first place a valid declaration as to the result of a poll. The chairman had no means of ascertaining the number of votes recorded for and against the proposal, and must necessarily rely upon the result of the poll as ascertained and declared by the returning officer. The motion was dismissed, with costs amounting to £l5 15s. MINISTER’S AUTHORITY. On Monday evening the clerk of the Hauraki Plains County Council, Mr. E. Walton, received the following telegram from his Auckland agents, Messrs. Bamford, Brown, and Leary: Mandamns dismissed with ten guineas costs. The position now is, said Mr. Walton to a "Gazette" reporter yesterday, that unless the petitioners devise some other means of hindering the Machinery Loan the Council, on receipt of authority from the Minister of Finance, will be in a position to go on to the market for the £lO,OOO of. the £30,600 intended to be raised at the first opportunity. Already the formal steps have been taken by the Council, pnd the consent of the Gov-, ernor-General to the raising of the £lO,OOO has been given. Application has been made to the Minister for his authority to raise the money at a rate not exceeding 6% per cent. The Council is still waiting for that authority. When that is obtained the Council can proceed.