APPLICATION TO UPSET ELECTION

Manawatu Herald, Volume XLVII, Issue 2962, 14 November 1925, Page 2

APPLICATION TO UPSET ELECTION

Writ of Mandamus Not Allowed' PLAINTIFF TO PAY COSTS. Late yesterday afternoon the hearing of the case in which Mr. P. L. Hollings, unsuccessful National candidate at the recent Manawatu Election, applied for the issue of a Writ of Mandamus against the Returning Officer for Manawatu (Mr. Wm. Trueman) to compei him to declare Mr Hollings elected unopposed on the greunsSs that his was the only nomination in the hands a? the Returning Officer by noon on the tenth dry StM&re the day appointed for the pci!, was heard before Mr. Justice Ostler, at the Palmerston worth Supreme Court. A Plaintiff appeared in person, and Mr F. Cooke, Crown Prosecutor, appeared on behalf of the Electoral Department. Mr. P. E. Baldwin was also f present to watch the interests of Mr. Joseph Linklater, the successful candidate.

In outlining his case, Mr. Soilings said that the Legislature Act directs that nominations shall reach the Returning Officer not later than noon on the tenth day before the day appointed for the poll, which in this ease, was the 25th Oetobei.

His Honour: Yes but that was a Sunday. There is provision made in the’Acts Interpretations Act, to extend the time until the next day. Mr. Rollings: I am leading up to that.

His Honour: Very well. Mr. Rollings stated that the date of closing of nominations should have been the 25th October. The Returning Officer, in a public notice announced that nominations closed on the 27th.

His Honour: The 25th was a Sunday and Monday was Labour Day, a Statutory holiday.

Mr. Hollings: Yes, I am leading up to that. Plaintiff continued that it was admitted by defendant that his nomination was in before noon on the 25th. It was in on the 23rd October.

His Honour: Yes, but that was a in in time. Let’s get on to the point of the case.

Mr. Hollings: It is also admitted that the other nominations did not reach the Returning Officer until later.'

ITis Honour: When was the successful candidate’s nomination put in? —On Monday. His Honour: Had it not been that the 25th was a Sunday and the following day a Statutory holiday, then there would have been everything in what you say. Let us get to the point.

Mr. Hollings then proceeded to deal with certain facts relating to the poll. His Honour remarked that the defendant would admit all tljpse facts and asked Mr. Hollings to get to the point.

Mr. Hollings: Very well we will pass over that. There is one point, however. I submit the Returning Officer had no authority to receive nominations after the 25th October. The election was invalid. All he had to do was to declare me elected. Continuing, he said that he anticipated the defendant would rely on the Interpretations Act; which states that if the time limited by any Act, for any proceeding, or the doing of anything under its provisions, expires or falls upon a holiday, the time so limited shall be extended to and such tiling may be done on the day next following which is not a holiday. Plaintiff relied on Section 25 (b), which read : “If in any Act any period of time dating from a given day, act, or event is prescribed or allowed for any purpose, the time shall, unless contrary to intention appears, be reckoned as exclusive of that day or of the day of that act or event.” His Honour: That means taking the days exclusive of the date of the poll.' Ten days before the d*te of poll —at noon on the tenth day. Mr. Hollings: Sub-section (b) makes my case stronger. His Honour: That means dated from noon on a given day. If it said ten days before the date of election, it would undoubtedly mean ten clear days, but it says at noon on the tenth day. The specified day in this ease was a Sunday.

Mr. Hollings: Very well! That Act doesn’t apply. His Honour: Only where a certain number of days is meant. I am not stopping you, JVIr. Hollings. Mr Hollings: The Section in the Acts Interpretations Act can t apply because it is ineonsistant with the Legislation Act. The Interpretations Act does not apply and the Legislature Act must be read literally. Continuing he said the Legislature Act threw everything out of gear. His Honour: There would not be ten holidays on end. Mr. Hollings: \V(orse than that. He then proceeded to illustrate his point and stated that if the Interpretations Act was applied, then it would result in a position where it was impossible to do what was required. “The only escape from such a deleimnahe said, “is to reject the Interpretations Act in favour of the Legislature Act, and if that is right and is applied, it makes the last day. for nomination October 25th.” The Bench said that Section 104, required 12. days and Section 105, at noon on a definite day, the tenth day before the election. It holidays prevented the Returning Officer from giving notice of polling until the very date he received nominations he could not see any confusion would arrive.

Mr. Hollings: If the Returning Officer advertised in an evening paper the advertisement would appear after the time fixed in the advertisement for the nominations to reach him. His Honour: There would be no confusion as,,,far as I can see. Mr. Hollings: Dealing with a notice of election days notice has to be given. His Honour: Notice of polling has to be given. Section 104 provides for that Mr. Hollings: That was amended in 1910. His Honour: Well! what’s the harm? Mr. Hollings: It reduces the Legislature Act to an absurdity. The nominations and advertisement would appear on the same day. His Honour: People have a pretty " good idea that an election is knocking about somewhere. Mr. Hollings: Is the Interpretations Act right?. If it does apply it operates to extend the time from the tenth to eleventh day before the poll and makes the Plaintiff’s ease much stronger because his was the only nomination in. He went on to deal with English law, and said if the rule were applied here, the tenth day would be Friday, October 23. To bring it to the Monday would be to remove it to the 9th day. This remedy of Mr. Hollings’ was more effectual than any other, he said. Continuing, he said that the defendant was a public officer and had a public duty to perform. A Writ of Mandamus was the correct remedy in this case and he had applied that remedy. The opposition would ask why he did not lodge an election petition, but that remedy was only for where misconduct took place at a poll or there were irregularities. All the essential facts of > the ease were proved in the affidavit. ill-. Cooke: Plaintiff does not say how he made the demand to be elected unapposed. Mr. Hollings: I made it verbally. ili\ Hollings having concluded, Mr. Baldwin rose for the purpose of legal argument, but His Honour said he did not think it at all necessary to hear either counsel. He said that Section 105 provided that the nomination of a candidate should be in not later than noon on the tenth day and therefore the time was limited by the Act. Polling day in this case was fixed for November 4th, and the latest time a candidate could be nominated was noon on the 25th day of October. This was a Sunday, however, and the Monday was Labour Day, a Statutory holiday. Plaintiff had sufficient forethought to put his nomination in two days before the 25th and the other two were put in on,, the 26th (a) of the Act Interpretations Act provided that if the stipulated time expired on a holiday the act may be 'f done on the day next following which is not a holiday. He could sec nothing otherwise. It would be a scandalous thing to be deprived of the right to nominate a candidate and the object of the Act is to avoid the electors being deprived of the right of doing so on the last day because that day is a holiday. Although the other nominations in this case were not in on the tenth day they were put in on the first time after the holiday, therefore it was not necessary to consider the question of Mandamus to declare the Plaintiff duly elected. The ease was dismissed accordingly and costs £5 5s Od, entered against plaintiff.