AN ELECTION VOID.

Stratford Evening Post, Volume XXVII, Issue 13, 15 May 1915, Page 7

AN ELECTION VOID.

j JUDGMENT OF THE COURT. Per Press .Association. Auckland, May 1-1. 'Their Honors Mr Justice Cooper and Mr Justice Chapman delivered judgment at the Supreme Court this morning iii the Taumarunui ejection petition ease, in which Mr A. H.'Johnstone and Mr Sharpies appeared for petitioner, Mr C. K. Wilson, and Mr '•6. P. Finlay and Mr J. D. Vernon for [respondent, Mr W. T. Jennings. The iCourt decided that the election for the ITaumarimui sent must be declared void on the ground that the elected 'candidate, Mr .Jennings, did not at the time of the election possess an elector's qualifications to be a candidate, as his name was not on the roll for Now Plymouth, which Court decided iwis his place of residence, and he had not qualified as a voter in the Taumarunui electorate, to the roll of which he had transferred his name some time before the election. In the course of their decision the Court dealt at length with the first jaud principal point raised—the riaflii •of respondent to stand as a candidate for the seat. Discussing the respondent's claim for a transfer to the Taumarunui roll on November 9th and 10th, 1914, their Honors remarked: The question is what rule is to guide us in determining as a matter of fact whether respondent had resided in the Taumarunui district for a month immediately preceding the date of his registration on the roll ol that district. In general terms, 'residence" usually imparts some idea of fixity though not necessarily of permanence, and the claim made here by respondent is that he resided either at the house of his friend, where he knew there was always room available for him though he had no sort of tenure, or at the hotel at To Kuiti, where he usually stayed. He must, however, show that in the popular sense he had for that month resided in the district. It is not sufficient that he made a prolonged visit. It may be that a person who. owing to the nature of his occupation, wanders round the district without leaving it has a claim to the franchise, hut that is not respondent's condition. Respondent had a place of abode within section 60 at New Plymonth and within the principle of all authorities he had a right to claim that he resided there. The house belonged to his wife ami it was a matrimonial home for both. He had an inrontrovertible right to go and remain ihere whenever it suited him. It was, in fact and in law, his home. It seems to us that the real position was that he thought he had better transfer his resignation to the district in which lie took so great an interest and which he desired to represent, but he had never removed thither or become in any sense a resident there. If the question arose in another way it would in such a case be unjust to deprive a man of his vote in the district where he resided merely because he had gone on a prolonged electioneering tour to another. We are of opinion that he did not reside in Taumarunui, but that he did reside in New Plymouth. As he was not on any other roll it follows that we must in terms of section !!)() sub-section F disallow his vote after holding that, as the respondent was not an elector within the definition, he could not be described as "a person registered as an elector." The Court adds: "The result we are compelled to hold is that the respondent was not at the date of the election qualified to he elected as a member of the House of Representatives." The Court proceeded to refer to certain other questions which were raised by the petition as to which a great 'deal of evidence was called and to which arguments of counsel were addressed. As to the irregularities at Mahirakau, the conclusion is that the only provision for preserving secrecy was such as the voter must create himself by taking care to lean over his paper and fold it before he altered his position. This must be contrasted with the requirements of the statute. The principle of election by secret ballot was disregarded and could not bo reserved at this booth when no provision was made and no adequate precaution taken to ensure secret voting and each voter was left to his own measures to ensure the secrecy of his vote, ft appears to us that both these conditions would have to concur before a Court could pronounce that the irregularities were such as ought to be condoned by it here. A timid voter might have been inclined to alter his or her vote rather than run the risk of having it disclosed, and that is what the ballot is meant to guard against. Counsel for the respondent argued that the Court ought to say that no such effect had ensued because notoriously most of the people who voted there belonged to the Labor party and were supporters of the respondent, and would have voted for him under any conditions. When the Court declines to allow an irregularity to affect the result it usually does so because it can see that, having regard to the number of votes polled at the place where it occurred, the irregularity could not have been affected by the result. The figures here do not tend to that conclusion. The majority was 205. From these, according to the admission made at the hearing, votes which must be disallowed amount to about 35 votes and about the same number are seriously challenged, some of which would certainly have to be disallowed. IT these are taken together the majority secured by the respondent is absorbed to ascertain the actual result. A scrutiny would be necessary, as we cannot speculate as to who has the benefit of the seventy challenged votes. The irregularities committed by .)'. H. Young in sending out for signature a number of enrolment forms already signed.by him as a witness was thus , referred to flic Court; There was an-

other irregular proceeding us to which we think we ought to express our opinion, A man named James Burns Young was employed for some time prior to the election in the capacity of agent for the Licensed Victuallers Association. He busied himself in collecting applications from numerous persona to be placed on the roll and on the da.v of the poll he was engaged in marshalling motor cars for the liquor party. He says lie never was an agent for respondent, but once telegraphed to him that he was short of forms of application for enrolment. He sent in some 600 of these applications, most of which it was admitted were made by persons entitled to be mi the roll. -Most leckless, and we think unscrupulous, irregularity was eommitted'in connection with this proceeding. Respondent was in no way to blame for these proceedings. Votes of the electors so placed on the roll have been decided by Full Court to be valid despite irregularities wlien the elector is qualified. In the part they took in the proceedings the electors probably acted in ignorance. We do not treat this as an irregularity affecting the result of the election, but we mention it as a grave question may arise heretafter as to how far serious irregularities committed by a person so closely connected with another branch of the day's pioceedings may :(l'ect the result of an election.

The Court went on to say that there were other irregularities alleged and in part proved. These irregularities taken together might have added some weight to that at Mahirakau, but the Court do not pronounce any opinion is to what result would have ensued iad it been obliged to consider the natter. We are compelled to decide '.■his case upon the question of the qualification or want of qualification of the respondent. We do not definitely determine the effect of the proved irregularities. For this reason, too, we have not thought it necessary to order \ scrutiny or to express any opinion ipon the numerous and difficult questions as to the particular claims to vote that have been challenged. We 'told the election to be void, and shall •crtiiy to the Speaker accordingly. Mr Ostler, who represented Mr Johnstone, for the petitioner, at the ■riving of the Court's decision, suggested that each party should be ordered to pay its own costs subject to respondent bearing the additional exDense incurred by the reference of cer-

ain legal points to the Full Court at Wellington. Mr Finlay expressed his thanks to '.lie opposing counsel and accepted the jffer, which the Court remarked to be in exceedingly generous one. Costs for the Full Court proceedings ivere fixed at £2l, and an order was aade in accordance with Mr Ostler's iiiggestion. At the request of the Registrar, Mr F. W. Schramm, Mr Ostler referred bo the question of a possible indemnity 'or John Burns Young. Mr Justice Cooper replied that, seeing that Young's evidence had been so untrustworthy and unbelievable, the Court had decided not to issue a certificate of indemnity. Mr Ostler then informed tbeir Honors that the six months within which Young could be prosecuted had expired, but that the Registrar, acting on the advice of the Crown Law Office, iad already laid information against Young, and would now take proceedings.

The question has arisen as to the eligibility of Mr Jennings for candidature at the by-election for the TauT.arunui seat. Authorities consulted this morning express the opinion that, as it is not necessary for the candidate to be on the roll as an elector of the district he actually seeks to represent in Parliament so long as ho is on the electoral roll of some other district, and as the Court has decided that New Plymouth is his place of residence, he will be entitled to enrolment, upon declaration, on the Ta ran aid electoral roll, from which he obtained transference to the Taumarunui roll last November. Tn such case Mr Jennings, is an elector of the New JMwuouth '•oil, would be quite candidate for the Taumarunui or any other |seat in New Zealand.