ELECTION CAMPAIGN EXPENSES.

Manawatu Herald, Volume XXXIV, Issue 1038, 2 May 1912, Page 3

ELECTION CAMPAIGN EXPENSES.

CANDIDATE SUED

RESERVED DECISION ON INTERESTING POIN T OF LAW.

PLAINTIFF succeeds on MERITS OF CASE.

At yesterday’s sitting of the Magistrate’s Court, John K. Hornblow (Mr Moore) proceeded against C. A. W. Moncktou (Mr Cooke) to recover the sum of £24 5s od, being the balance of account for advertising in connection with tffe defendant’s election campaign as a candidate for the Otaki seat at the late general election,

In opening for the plaintiff, Mr Moore stated that, under The Legislature Act,, every eaudidate is required to pay all accounts owing by him within 60 days alter the successful candidate is declared elected. If not paid within that time the person to whom the account is owing is given authority by the statute to issue a summons tor recovery ot the account within 30 days after the 60 days has expired. In this case, owing to the plaintiff having been misled by the deteudant, having put a note upon a demand draft which the plaintiff had sent to him through the Bank for payment, the plaintiff had not taken proceedings within the time provided by the Legislature Act, and the plaintiff had therefore been obliged to take proceedings after the time provided by statute. According to section 196, a candidate who pays a claim after the expiration ot the 60 days is deemed to have committed an illegal practice. It was evident, therefore, that in this case the defendant could raise the defence that the summons was issued tor a claim which he was not legally entitled to pay, owing to the time tor issue of the summons having expired. However, section 171 ot the Act gave either the claimant or the candidate the right to apply to a Magistrate’s Court for an order giving leave to the defendant to puj iu. maim after the statutory period. An application was thereiore made to the Court in this case by the claimant asking for the Magistrate’s order and an affidavit hied setting out the grounds on which the application was made. If the Magistrate made the order the defendant’s plea that he could not legally pay the claim would fail. It might be argued by the defendant against the grant ot the order that even it an order were made it would only give him leave to pay, and would not necessarily give the plaintiff leave to sue after the statutory period. However, to adopt this construction of the statute would make it meaningless. The Legislature in giving power to the claimant to apply tor an order could not have meant that that oraer when obtained would be valueless by being uueuiorcible. To make the provisions of the statute consistent it must be assumed that the order would make it lawiul for the plaintiff to sue tor recovery of the amount mentioned in the order. At common law everyone knows that he has six years within which to recover the amount, and the special provisions ot the Legislature Act limiting this period to 90 days was so drastic an innovation on the common law and so likely to mislead persons having claims against candidates that it was only reasonable to construe the statute as strongly as possible against anyone seeking to take advantage ot these special provisions tor the purpose of evading payment ot an account that was justly owing, and accordingly any reasonable interpretation ot the provisions of the Act which would enable the plaintiff to obtain an order from the Court authorising him to sue after the stipulated period in cases where the delay was the result of having been misled by the defendant ought to be adopted. The grounds on which the application to the Court for au order was made in this instance were that through the action ot the delendant in putting the plaintiff off from time to time without definitely inlorming him that he did not intend to pay resulted in tne plaintiff having delayed taking proceedings until alter the statutory period, thinking that the defendant intended to pay him. Counsel argued a number ot otaer legal points in support of his contention that au order should be made by the court enabling the plaintiff to proceed to judgment on his cfaim and pointed out that the intention ot the Legislature Act in making these provisions was evidently to prevent secret arrangements by which candidates could arrange to pay claims in excess of the amounts legally payable al dates long after the election and not for the purpose ot preventing persons who had just and lawiul claims against candidates from recovering them, or from having any reasonable opportunity of having their claims heard and adjudged upon by the court. Counsel further slated that he understood that the defendant’s only objection to paying the claim was that he considered it an overcharge. Ii that were so the defendant could have no objection to the case being beard in court, and adjudged upon by the magistrate. Plaintiff was quite willing to go into the case openly and prove that his claim was a penectly fair and just one, and if the defendant could establish that the claim was an overcharge there a as no necessity ior him to take advantage oi these technical provisions of the Statute for the purpose of attempting to prevent the

plaintiff’s claim against him from being fully gone into on its merits, and decided upon by the court, as to whether it was a de.br which the plaintiff was entitled to have paid. If the defendant raised the objection to the case being hoard on the grounds that tbs statutory time for taking proceedings had expired it would, appear that lie (delendant) did hot wish to allow the plaintiff to prove that his claim was a perfectly fair and just one. Mr Cooke objected to the order being made. Plaintiff admitted that proceedings were not taken within the time allowed, and he argued that although the Act made provision for a Magistrate, upon reasonable cause being shown, to grant leave to a candidate to pay an account after the expiry of go days, it did not provide for leave being granted to a claimant to sue a candidate. The effect of the order, if made, would be that the amount to be paid would be deemed to be paid within the time allowed by the Act. Supposing, continued counsel, this amount made Mr Monckton’s election expenses exceed the limit allowed by Statute, it would mean that he would be guilty of an illegal practice and, under those circumstances, the Court would not grant leave. It may be that the defendant’s expenses would be above the limit if tnis amount had to be paid. Even if leave were given tor the payment of an amount after the expiry of 90 days, it did not say that the claimant could bring an action for the recovery of the amount. “The legislature Act 1908 was drawn up in a very slipshod manner, and was a disgrace to the draftsman responsible. It appeared to him that it had been taken from the English Corrupt Practices Act, and the draftsman had cut bits ot that Act out and put them together in making up the N.Z. Legislature Act. He contended that defendant had a good defence on the merits as the claim was excessive. He held, however, that the claim was absolutely barred, and that the Court could not give a claimant leave to sue. He submitted the only leave that could be granted would be to the candidate to pay, and if the action were not commenced within 90 days no order could be made. He argued further that an order could not be made without the consent ot both parties. Mr Moore addressed the Court in reply to Mr Cooke and the Magistrate said he would reserve his judgment on the point, and would hear the evidence.

Mr Moore called John Knowles Horublovv, proprietor of the ManawaTu Hekawj, who stated that certain advertising and printing had been doue at the request of xMr Monckton, for which the usual charges were made. The charges for the insertion of defendant's manifesto, 3s per inen, was perfectly reasonable, and compared favourably with the rates charged by all well-conducted journals. The manifesto was inserted in accordance with instructions received by letter, except that instead of putting it in a space of 20 inches, according to authorised copy, if was reduced to x 6 inches only. By doing this, a saving to defendant was effected of between £7 and £B. The manifesto was inserted until countermanded." The Herald's scale lor ordinary casual advertising was three shillings per inch per insertion. Defendant got more publicity in the Herald than any other candidate. Prior to the election campaign all candidates had the chance ot entering into an arrangement for tneir advertising, but Mr Brown was the only candidate who look advantage of this offer. After the account had been rendered, Mr Makiu, defendant’s secretary, called and asked for a reduction, saying that the Horovvhenua Chronicle bad only charged £7 for inserting the manifesto. He told Makiu to call again during the afternoon, and in the meantime rang up the manager of the Chronicle (Mr Brown), who stated that a charge of £7 only had been made, but said there were “other considerations.” Witness said that during the whole ol ms experience in newspaper work he had never known any well-conducted journal to make such a ridiculously low charge lor a similar advertisement as that made by the Chronicle, It was generally recognised that during au election campaign the work ot getting out a newspaper was hampered and the staff disorganised to a great extent. He had never known any candidate dispute charges of three shillings per inch ior election advertising, it was since the account was rendered that Makin asked for a reduction.

To Mr Cooke : He never wrote to Mr Moncktou soliciting the insertion ot the manifesto. Other than the first letter sent to all the candidates, he did not canvass either Makin or Moncktou tor advertisements. There was a great difference between election advertising and ordinary commercial advertising. The scale produced (Horowhenua Chronicle) was a lair one for business advertisements. Did not tell Makin that he would charge the same as other papers. Told him that Moncktou would get the same treatment in regard to publicity as the other candidates. Mr Field wanted a reduction made in his account, but was refused.

Fred Piraui, part proprietor oi the Feilding Star, said he had 30 years experience in newspaper work, practically the whole of it being in connection with country newspapers. He had never known ol contracts being made in connection with election advertising, it was always recognised that this

kind of advertising differed irom other advertising and the rule was for it to he charged up at the usual scale for casual advertisements. There were so many considerations in connectin' l with this class of work, and It was generally recognised that there ought to be a special charge for election advertisements. Any aUrertisemeut inserted without any previous arrangement being made was always charged up at scale rates. He quoted one instance where an advertiser, who, had he made arrangements beforehand, could have had a certain advertisement inserted for 30s, but through not doing so had been compelled to pay 5s for the same advertisement. Nothing was recognised under scale rates unless a contract was entered into previous to the insertion of the advertisement. He didn’t know of any paper that charged under three shillings per inch for election advertising and he considered this charge was a low one. Election advertising certainly came under the heading oi casual advertising. He said there were very few cases where candidates paid their accounts within the time specified by the Act. It was more often six and nine mouths and sometimes longer before an account was settled.

To Mr Cooke : He had inserted manifestos in papers controlled by him, but not as long as Monckton’s and bad never charged under 3s per inch for same. Cbas. S. Rush, of the Manawatu Standard staff, stated that he bad had nine years experience in newspaper work, and considered 3s per inch was a low charge for election advertising. For the same advertisement the Mauawatu Standard charged Mr Moncktou 4s per inch. It was subsequently reduced to 3s per inch on condition that the account was paid at once. The account had not yet been paid. Daring the last election Mr F'eild bad au advertisement in the Standard over the leader for which he was charged and paid five shillings per inch. The Standard charged 4s per inch for election advertisements, and had inserted advertisements for candidates ior Palmerston, Oroua, Raugitikei and Otaki, and none had objected to the charges made. He considered the charge made by the Hrrard, 3s per inch, was a fair one, in fact, it was a low charge. To Mr Cooke: The Standard account against Mr Moncktou was and was afterwards reduced by £8 on condition that it was paid at once. But it had nut yet been paid. Frank D, Whibley gave evidence to the effect that Mr Moncklou’s account had been rendered promptly, and subsequently Mr Makiu came to Foxtou and asked for a reduction. Plaintiff saw Makiu before lunch and told him to call again in the afternoon, when witness saw him and discussed the account with him. Makiu went away apparently satisfied with the charges made, Some time later a cheque was received from defendant for i6s, a reduction in the original account having been made in Makiu’s hand writing and without plaintiff’s authority. A receipt ior the amount received on account was sent to defendant with a notification to the effect that it could not be understood why a reduction had been made and asking that a cheque for the balance owing be lor warded by return mail. No reply was received to this communication and later defendant was advised that he would be drawn on through the bank for the amount. The draft was sent through but was returned unpaid with a notification in defendant’s writing that the amount had been paid by cheque. As no cheque bad come to hand, a further letter was sent to deteudant advising him that such was the case, and asking him to send same by return mail. Moncktou also tailed to reply to this letter and later he was advised that witness would call on aim for the purpose of collecting the account. Witness went to Otaki on March xßth and called at defendant’s house. Defendant said he understood the account had been settled, staling that he believed the reduction made by Makiu had been agreed to by plaintiff. He made au appointment for the alteruoou, and in company with Makiu, he and witness discussed the matter at some length. Defendant told witness, in reply to a question, that his reason tor not answering the letters sent was because he considered it was “ a try-on.” At the conclusion of the interview, on being asked what he intended to do, defendant said he proposed to 11 pursue a policy 01 inactivity.” Witness then told him legal proceedings would be instituted to recover the amount.

This closed the case for the plaintiff and tor the defence Mr Cooke called George P. Brown, managing - editor of the Horovyhenna Chronicle, who said that Mr Moncktou’s account with the Chronicle was £iy 14s 3d. The Chronicle’s charge for casual advertisements was 3s per inch first insertion and 2s per inch for each subsequent insertion. He had charged £7 ior inserting Lae manifesto for six weeks, and in doing so had pursued his ordinary practice. Ad advertisements inserted for under a mouth were charged up at casual rates, but over that period the usual scale rates lor business advertisements were charged. He had had a good deal ol experience in newspaper work and considered his charges were fair ones. He made no aisfiucliou between election or any other class 01 advertising. To Mr Moore : Had had about 15 years experience in newspaper life, a good deal ol it as reporter. Ii was quite possible tor a reporter to also gain experience in connec-

tion with advertising, etc., although be might be doing nothing else but reporting. Witness was for a considerable time reporting on the Evening Post and during that time got a good many side lights in connection with advertising, etc. He was also canvassing for some time for a newspaper in Marlborough, collecting accounts, etc. He admitted that it would not give him any experience as to correct charges for advertising, etc. The last election was the first during which he had conducted a newspaper. It was his first experience of the financial part of the business. Told plaintiff that his charge did not make any difference to what amount he (plaintiff) charged. He didn’t think the Hkrai.d should charge any more than the Chronicle. He believed that other papers he had worked on had pursued the “old bad method of ‘bleeding’ candidates.” All papers that charged more than their ordinary scale rates did not treat candidates fairly. He knew of a candidate in Wellington who had been charged 10s per inch during the last election. Some newspapers charged for reports of meetings also. His method was not the same as that adopted by some papers, but those who charged more than he did followed the old bad method. Asked to name any paper that made charges similar to those of the Chronicle, witness said he believed the Otaki Mail did. Questioned he could not say for certain exactly what the Mail did charge lor the manifesto. In his opinion the amount charged by the Hkrapd, although it might be justified, was not a fair charge, and in any paper that he conducted he would follow his own charges. To Mr Cooke : Setting an election advertisement was less trouble than ordinary advertisements. All advertisers should be treated alike.

Frank Penn, proprietor of the Otaki Mail said he advertised Moncklon’s manifesto for about six weeks for An arrangement to this effect was made with Mr Moncktou prior to the manifesto being inserted. Had no arrangement been made he would have been entitled to charge three shillings per inch for it, but he didn’t think he would have doue so over such a lengthy period. To Mr Moore ; He remembered Mr Whibley calling on him during March. Did not remember exactly what was said, but he probably told Mr Whibley that 3s an inch was a fair charge to make. Plaintiff was quite within his rights to make that charge. He didn’t think it was the custom to make contracts in connection with election advertisements, but it was not usual to get such a large advertisement to be inserted for so long a period. The rates for casual advertisements in the Mail was 3s per inch. To the Magistrate: On papers that he had been connected with ihe usual practice was to charge 3s an inch for this class of advertisment. Election advertisements were worth more than ordinary business advertisementsRobert G. Makin, organiser for delendant in the recent campaign, staled in evidence that when he called on plaintiff about advertising, plaintiff said that his prices and work would compare favourably with that of any other paper. Witness told plaintiff he would do what he could in respect to advertising and printing. To Mr Moore ; The manifesto was not mentioned at the time of (.he inter view. Witness subsequently wrote authorising the insertion to be copied from the Otaki Mail. Witness said he made the reduction in the account because after seeing Mr Whibley, he was under the impression that au allowance was going to be made. Alter receiving the account from the Standard, he had gone to Palmerston and asked for a reduction, and the account was reduced by £B. Charles A. W. Monckton, defendant, stated that plaintiff wrote prior to the commencement of the campaign, advising that he was prepared to enter into a contract for advertising, and witness replied that when he visited F'oxton he would call and go into the matter. Subsequently Makiu told witness that the Foxtou paper’s charges would be the same as the Chronicle and Mail. In reference to the Standard, witness got a price for the manifesto which he believed was about A price was quoted by the Standard and then reduced, He did not ask for the reduction ; it was made voluntarily. To Mr Moore : Plaintiff told him that the charges would be the same as the Chronicle and Mail. He thought all newspapers ot a similar class would charge the same. Did not tell plaintiff that au arrangement had been made with the Mail- Dul not ask the Standard for a reduction after he received the account. Couldn’t say whether the Standard’s charge was 3s or 4s per inch. Couldn’t say whether Makiu asked the Standard for a reduction or not. Didn’t know why Makiu went to Pcdiaerslou with the Standard account in his pocket. Witness declined to say whether he had paid the Standard account or not. This concluded the evidence, and the Magistrate said he would reserve judgment on the point raised at the commencement, but on the merits of the case the plaintiff must succeed. Subject to the above point of law the plaintiff would have judgment.