RESIDENT MAGISTRATE’S COURT, STAFFORD TOWN.

Kumara Times, Issue 1112, 23 April 1880, Page 3

RESIDENT MAGISTRATE’S COURT, STAFFORD TOWN.

Thursday, April 22. [Before J: Giles, 1 Esq., R.M.] v ARAHURA ROAD ROArD.—TENNANT V. - RODGRS. This was a case which came on for hearing ,at the Resident Magistrate’s Court, iGoldsboioligh, on' Thursday April 15, before J. Giles, Esq., R.M., In which John Rodgers pleaded not guilty to ah information laid by Thomas Tennant, Butcher, of Dillhum’s Town. The information was as follows That John Rodgers did act ’as a member of the Arab Ura Road Board, by taking part in the proceedings of the said Board, whilst incapacitated so to do by reason of his having gone out of office as a member of the Board on the second Thursday in December last, And not having been reelected since.

Mr Pnrkiss> who appeared on behalf of the informant, wiia present, as also Was Mr Button, who appeared for the 'defendant.

The Magistrate, in giving judgment, 'said: This is an information laid by Thomas Tennant against John Rodgers, tmder the 18th section of the “ County

‘of Westland Act, 1877,” for “ having acted as a member of the Arahura Road Board, being at the time incapacitated iso to do by reason of his having gone put of office befotb that time, and nbt having been re-elected.” The several joints relied on for the defence are—--Ist, That wrong proceedings have been taken, the procedure as intended by the 18th section of the Act being a civil suit as for the recovery of debt, and hot an information of a criminal nature. 2nd. That upon the state of the Case as disclosed in the information, the defendant was not incapacitated within the meaning of the Act. 3rd. That in fact, the .defendant never did go out of Office as a member of the Board. Ah; though any one of these points is sufficient to decide the case, yet tie thought it right to express his opinion on all of them, in order that the very unsatisfactory condition of the'whole question of the Arahura Road Board might not want any light he could throw upon it; ifhe Wonts of the.lßth section are very ambiguous with reference to the mode of procedure. . The words “ offence ” and “penalty” .seem to involve such a procedure as had been taken in this case; while the words “suit” and plaintiff” apparently indicate a civil action, as if for debt. Upon this point the 19th section of the “ Goldmiuing Claim Drainage Act, 1868,” has been

appealed to as justifying the course adopted by the informant in this case. He (the Magistrate) thought" the tion referred to would serve the argument as far as that it showed the word ‘‘sue” was not incompatible with a procedure under the “Justices of the Peace Act, 1866'.”' But in such a procedure, the use of the term “ plaintiff” was so far as he knew unprecedented, and he could not help thinking that its occurrence in the 18th Section of the “ County of Westland Act-” -shewed that pieces? of a civil nature was contemplated. This conclusion was strengthened by the evident fact that a civil action was not excluded by the words of the section, : and it could scarcely be supposed that the legislature were indifferent whether i the penalty should be recoverable as a debt or by a process involving the alternative of imprisonment with hard labor, or that two Justices of the Peace who would not be a court of competent jurisdiction under the “ Resident Magistrate’s Act, 1867,” should be able to try the case under the “ Justices of the Peace Act.” For these reasons he thought the wrong process was made use of in this Case ; but such was tbe defect of clearness in the language of the Act that he could not pretend to feel great confidence in his "own opinion on that point. Upon the second point- he thought a conclusion might be anived at with great clearness. The offence defined in the 18th section was that of acting as a member of the Board when incapacitated under the provisions of the Act. It was a penal clause, and as snch must be interpreted with strictness. He must not, therefore, regard anything as an incapacity which was not pronounced to be So hy the Act. Sub-sections 16 and 17 enumerated the matters which render Uny person not capable ' of being or continuing a member of the Board. Females, bankrupts, contractors, and certain criminals were incapacitated, and besides these any person not qualified as required is also incapacitated from being or continuing a member. The question then arose, what was one meaning of the words “ qualified as herein required 1” He thought that was answered by the 15tb sections which defines how a person may be qualified to be a member of any Road Board; and that qualifica-

tion was substantially the l aving a Vote in the election of a member of the Road Board. That" was the qualification, and the onus of proof WaA;thrown 6n the defendant by the ISth section j and if he has the? qualification and did not come whither any of the categories mentioned in theproceeding sections, he was not incapacitated from being or continuing a member of the Boat'd. If Already a member, he might, continue as one ; and if not a member,he. might become otie. He thought, therefore, that the offence as laid in the information against the defendant as to having taking part in the proceedings of the Board after having gone out of office was not an offence at all within the meaning of the 18th section. Upon the question of the defendants Sealr having been already vacated, he thought there was some reason for doubt, and if his decision depended on this point, be could hardly say that the “ estraordihary vacancies’ relied on by thte informant hail been proved by sufficiently definite and appropriate evidence. He COlild not help thinking that if the view taken on behalf of the prosecution was correct, and the Board consisted now of three members only, Without any possibility of getting right, it might be very fairly doubted if there was any Board at all in existence at the present, moment, ahd consequently whether ah offence under the 18th section was in any way possible. On these grounds lie dismissed the information, with costs.

Mr Purkiss contended that after the decision given by Magistrate that his jurisdiction was ousted on the face of the proceedings, inasmuch as by his ruling a civil icmedy was the only one that could be brought in this case, And on these grounds he objected to costs being granted. Mr Button said it was not a question of jurisdiction; a criminal information had been laid and it was for the Magistrate to decide whether it was a cririie or not, and in that certainly he bad jurisdiction. He ftskpd for professional costs and also costs of one witness.

The Magistrate said he would assess the costs provisionally, but would stay execution meanwhile. He should allow £2 2s professional costs, £1 2s for defendants expenses, and Costs of Court.