CHALLENGE TO “BIG SIX”

Sun (Auckland), Volume III, Issue 766, 12 September 1929, Page 1

CHALLENGE TO “BIG SIX”

Transport Board Reappointments PETITION FOR REMOVAL rIE right of Auckland s “big six” to retain their seats on the Pi ansport Board was challenged by electors in the Supreme ..ouit today. of the members concerned in the proceedings was present.

The “six,'’ whose removal from the hoard was sought, are Messrs. J. A. C. Allum, chairman. G. Baildon, Mayor, and Q. C. Ashley, M. J. Coyle, A. J. Entrican and E. J. Phelan. The petitioners for the removal were Malcolm Turkington, a retired school teacher, of Green Lane, Geo. Wigg, a coal merchant, of Ponsonby, and Frederick William Jeffers, draper, of Ponsonby. The grounds of the petition are: “That the defendants, having been elected to the Transport Board on November 15. 1928, were removed from office of the board by the City Council on May 28, or alternatively, in respect of J. A. C. Allum, that he bad resigned as a member of the board on May 3. A farther ground was that defendants had since May 28 still continued wrongfully to act in office as members of the board. Mr. Justice Herdman was on the Bench. Mr. E. H. Northcroft appeared for the petitioners, and Mr. A. H. Johnstone, with him Mr. J. Stanton, represented the defendants. The facts of the removal and subsequent reappointment of the “six” by the City Council after the municipal elections in May were admitted. Mr. Northcroft stated that the court’s assistance was sought to remove the defendants from the board, or to declare that the “six” were not entitled to hold their seats. JURISDICTION QUESTIONED A surprise was sprung at this early stage by Mr. Johnstone’s saying that two issues would be presented by defendants, one of which if sound would involve a rehearing of the proceedings. He submitted that the proceedings ■were not iu order as the AttorneyGeneral had not been joined as a party. Secondly, he contended that there was no jurisdiction for the court to deal with the case at all. Counsel suggested that to avoid having to rehear the action, there would have to be an adjournment to join the Attor-ney-General. Mr. Northcroft argued that there was no need for the joinder of the At-torney-General, and in any event, joinder was only a matter of procedure, and could be done at any point in the proceedings. Mr. Johnstone reiterated that the Attorney-General might not agree to be joined, and therefore the case would have to be reheard. Mr. Northcroft: If the AttorneyGeneral agrees to the joinder, it can be made at any time. There would be no necessity to argue the substantial issues again, counsel considered. The points raised by Mr. Johnstone were reserved by the judge. After tracing the cause of enactment of the Transport Board legislation, Mr. Northcroft said that on account of the divergence of opinion concerning the board’s constitution, a compromise was reached, that the hoard should be nominative for the first period, and elective thereafter. The principal issue was the meaning of section 6 of the Act, and wether the council had acted rightly or wrongly In reappointing the “six” under the provisions of this clause. The “six” was removed from office by the City Council, Mr. Northcroft went on, and acted on this removal as complete and effective. The Mayor had determined it was unnecessary to deal with Mr. Allum’s resignation, which was handed to him to be forwarded to the Transport Board for consideration.

By removing Mr. Allum with the others, counsel maintained, the City Council had acted in a mistaken view of section 6. Two days later the council performed its second function under this clause, by filling the vacancies, by returning the same’ members, including Mr. Allum. His Honour: What would have been the position if the vacancies had not been filled? Mr. Northcroft: There would have been extraordinary vacancies created “be filled by vote of the electors. The period of office to be held by appointees was fixed by the Act until May, 1931, continued counsel. He added, however, that authority was Sranted to the council to review and any of its nominees on the °ard, if desired. This provision, he ?i rSU K d ’ was to P rev e n t members of ue toard, who might be disapproved rffl tlle ft^ectors » from continuing in Pee for a further two years. The hv Ct ° rS indicate their opinion 7 returning a new council, on an _l* Ue fought on transport questions.

I or reject candidates for the council j who were nominees on the Transport | Board. That was the position of Mr. j Allum, though the cause of his defeat | was not the concern of the court. The principal submissions for the petitioners were that, before the appointments to fill the vacancies on the board were made proper notice should have been given to the council, and secondly, that the council had no power to reappoint the members recalled. Counsel remarked on the manifest absurdity of legislating for the recall of the same members. It was overwhelmingly clear the clause required that the vacancies should be filled by different appointees from those recalled by the council. The City Council’s advisers, however, held that removal of the nominees was not consummated unless followed by new appointments, which, of course, involved a strained and fanciful interpretation of the Act. There was a deliberate intention on the part of Cr. Bloodwortb, in moving to remove the “six,” said counsel, to force them to go before the electors. Mr. Northcroft held that the “six” removed were disqualified from being reappointed. MR. ALLUM’S POSITION The position of Mr. Allum was discussed at/ length by counsel. He maintained that Mr. Allum’s reappointment to the board did not comply with the terms of Cr. J. B. Paterson’s motion, in that he did not secure a majority vote of the council. Mr. Allum secured only 10 votes in a council of 21, and was the sixth of the list of members returned to the Transport Board. For the defence, Mr. Stanton argued that the City Council was the authority to decide whether the Act should come into force. In granting to the council the power of review of its nominees on the board, counsel was of opinion that the Legislature contemplated that the council might replace one or more of its nominees, or might confirm appointments of the original holders of office on the board. If the “six” could not be; reappointed, it would be unseated, notwithstanding having received the highest number of votes from the council. Secondly, there was no provision in the Act to fill the vacancies, as the City Council’s authority to do so expired on May 31. There was ample description in the Act which determined extraordinary vacancies.

Proceeding, Mr. Stanton claimed there was no right to remove the “Six” to create extraordinary vacancies except in order to replace its nominees on the board. He submitted that under the provisions of Section 6. the council was empowered to make substitutional appointments, the right of removal being merely an ancillary part. The council had the exclusive right of filling vacancies created by the removals up to May 31, and no election could be held until that date. Counsel argued that if the six were removed and no substitutional appointments were made the Transport Board v/ould be without a quorum until an election took place. If the petitioners’ system was adopted, added Mr. Stanton, it would turn the board into a “piebald” institution, partly nominative and partly elective, which was entirely against the principles which legislature had intended. "It would make it ‘half-caste,’ not ‘piebald,’ ” remarked his Honour amid laughter. (Proceeding.)