TRANSPORT “SIX” REMAIN

Sun (Auckland), Volume III, Issue 784, 3 October 1929, Page 1

TRANSPORT “SIX” REMAIN

Mr. Justice Herdman 7 s Decision

not removed till replaced THE Auckland City Council's six nominees on the Transport Board, Messrs. J. A. C. Allum, chairman, G. G. Ashley, G. Baildon, M. J. Coyle, A. J. Entrican and E. J. Phelan, who were removed and reappointed to office by the City Council after the municipal elections in May, will retain their seats on the board. This is the effect of the reserved judgment of Mr. Justice Herdman, delivered in the Supreme Court today, which dismissed the petition by three electors for the removal of these members from office.

The judge ruled that the Supreme Court was debarred by section 14 of th« Transport Act from deciding whether each of the six nominees was or had become incapable of holding office under the Statute, and that the Magistrate’s Court was the tribunal to decide this question.

Reviewing the facts, the judge said that when the City Council appointed the “six” to the Transport Board on November 15, 1925. the nominees ware members of the council. Following the defeat of Mr. J. A. C. Allum as a candidate for the council at the May municipal elections. Mr. Allum had tendered his resignation from the hoard to the Mayor, but the letter was not forwarded to the board. On May 2S, on the motion of Cr. Bloodworth, the City Council, at a special meeting, removed the “six.” His Honour considered that as Mr. Allum was included in the “six” the necessity for consideration of the resignaiion disappeared. At the adjourned meeting two days later, on a notice that six members were to be appointed to the board, the council returned the “six” who had previously held office, these men having received the highest number of votes of the council. .. The plaintiff s contentions, the judge continued, were that the notice convening the meeting should have stated that appointments were to be made to fill the vacancies caused by removal of the "six,” and that the Transport Act did not authorise the reappointment of members removed from office, but contemplated the appointment of persons other than those deposed. The defendants replied that unless a resolution of the council were in existence proving that a change in personnel of the council had been effected by new appointments the original appointments stood. In this case, continued his Honour, notwithstanding efforts to nominate new members of the Transport Board, no change in the personnel of the nominees was made. The objects of the Transport Act were discussed by his Honour, who declared that the new council had exercised its rights, under the legislation, to review and recast the council’s original nominees on the board, who, otherwise, except in the event of extraordinary vacancies, would hold office until May, 1931. LEGISLATURE’S INTENTION It was plainly the intention of the legislature that the first board should be appointed by constituent local bodies and not elected by the electors, said his Honour. He held that the principle of appointment by local authorities would be violated if the vacant seats of the “six” were filled by the electors. Apart from this, the council had the sole prerogative beiween the beginning and end of May this year, to interfere with the composition of the board. His Honour also held that if the council removed the members of the board, it was compelled to appoint successors. Otherwise, a local authority might neglect or refuse to appoint members to replace those removed, leaving the Transport Board without a quorum and unable to function. In his opinion unless fresh appointments to place members removed were made, the depositions were not effective.

The council was authorised to make "substitutionary appointments” to the vacant seats, but his Honour held that as no new member was appointed In place of an old member the act of substitution the council was required to perform was never consummated and the original appointments. of the “six” in November, 1925, therefore stood. His Honour concluded that the proceedings of the council on May 2S and May 30 were incomplete and ineffective. The authorities were of little assistance in interpreting a novel provision in a statute. “Whether defendants are, or are not, still members of the Transport Board depends almost solely upon the meaning to be ascribed to the legislation which X have been considering,” added the judge. Dealing with the defence’s contention that the notice of the special meeting should have informed members that new appointments, to the board were to be made, the Judge said that it was unnecessary to consider whether what was done at the meeting on May 30 was irregular. He also dismissed the question of Mr. Allum’s reappointment on the ground that as there were no substitutionary appointments made, the original nominees retained office. He could r t see how Mr. Allum’s election could be impeached, as he, with five others, received more of the council’s votes than any other candidates on a system agreed to by the whole council. Mr. Lundon seemed to have protested after the deed was done. NO JURISDICTION

On the issue of the Supreme Court's jurisdiction to hear the case, his Honour said that if the court had authority to do so, the AttorneyGeneral should have been a party In the action, because the question at issue was “Has there been any interference with public right?” No private right of the plaintiffs’ had been interfered with in this case, and not one of them had suffered any special damage. If at all, the interference was with the statutory rights of the electors. He was prepared to hold that defendants were holding office in accordance with the law, and it was therefore unnecessary to bring the AttorneyrGeneral into the litigation. The provision of section 14 of the Transport Act providing that the Magistrate's Court might issue a summons for the ousting of a member upon proof that he was incapable of holding office, was dealt with by"the Judge. “Reluctant as I am to decide that the jurisdiction of this court in a matter of this kind has been taken away, I have been unable to discover any sound reason for deciding that the remedy against a person, who is or has become incapable of holding an office, is restricted to the cases enumerated in section 10 of the Act, he said. Judgment was entered for defendants with costs as on an action for £5Ol. Mr. Northcroft appeared for plaintiffs and Mr. Johnstone and Mr. Stanton for defendants.