LICENSING ELECTIONS. JUDGMENT GIVEN IN THE CITY EAST PETITIONS. THREE "MODERATES" DECLARED DULY ELECTED.

Te Aroha News, Volume V, Issue 247, 17 March 1888, Page 4

LICENSING ELECTIONS. JUDGMENT GIVEN IN THE CITY EAST PETITIONS. THREE "MODERATES" DECLARED DULY ELECTED.

Auckland, Mareh>l2. -At the Resident Magistrate's Court this morning, before If. G. Seth Smith, Esq., R. M., His Worship delivered judgment in the Auckland Enbt licencing election petitions as follows :—: — Licensing election, Auckland East. It is now admitted that the election of the iivo candidates who ha\e been deelaied elected by the Keiununt;- Oiiieer is void, upon tho gioumU that their uotmnatiouh were not delivoved at the appointed place at the appointed time. I need therefore bay nothing about that. I ha\o to consider whether any or all of the other live candidates shall be declaied duly elected. In dealing with thn part of the ease, it seems to me that 1 must treat it as if the»e last - named candidates had been declared elected by tho Returning Otiieer, and a petition had beon dechued against them, section 51 of the Regulation of Local Election* Act, 1876, piohibits 4xn inquny into the tiathof any allegation not set foi th in Section 50. 1 can, theiefoie, only connidci such matter as would have suppoi ted u petition. The lirs>t objection taken it to tho appointment and qualification of the Returning OfUcei". The fact that ho has acted as vuch, with tho tacit consent of tho local body with whom his appointment tests, is pnaa tack evidence of his appointment by the local body. If theie has been .my hregukuity in his appointment that, would be no ground for declaring tho election void, unless it had been shown that Mich irregularity tended to defeat tho fairness of the election. It has not been show n that the fairness of t-he election was in any way affected by tho alleged irregukuities. Assuming theiefore that* some irregularities have been disclosed (and upon that point 1 do nob think I amiequiied to express an opinion), they do nob atibrd any {uifiicienb ground for declaring the election wholly void. Tho next point taken i& that two of the five candidates in whose favour declaiation is sought, were at the time of their nomination, afc the commencement of these proceedings insolvent, within the meaning ot section 7 of the Licensing Act, 1881. Tho meaning of the word insolvent was much discussed in tho House of Louis, in Regina v. Saddler's Company, 32 L. J. 2 B. 337 (1863). A by-law of the Saddler's Company disqualifies from holding ceitain oih'oes any pei<>on .\ho has been a bankrupt or has become otherwise insolvent, and their Lordships decided that the woids, as they are used referred to a public insolvency. Loul C ran worth said: "Inteipret the word insolvency to mean not mere inability of the pei>ou to whom it refers to pay his debts m full, but inability pioved by some outward act, such as stopping payment or compounding "\\itli his creditors." Lord Wensley l>ale said : "I cannot help thinking it is quite clear that the term ' insolvent' means public insolvency — nob necessarily taking the benefit of, or being made liable to the Insolvent Act (it could not have that meaning in New Zealand), but being incapable to pay his debts in ordinary course, or in other woids ' inning stopped payment.'" This definition seems to me to be exactly applicable to the Licensing Act, and to the faefcs of this case. The firms, of which the two candidates now under consideiation are respectively members, have assigned their estates to trustees for the benefit of their ci editors, and no dividend .has as yet been paid. Each firm is therefore in a state of insolvency. Ib is immaterial what the future result may be. Insolvency means, as Willes J pointed out, not the inability to pay 20s in the pound when the aftaire shall be ultimately wound j up, but .a man is in insolvent circumstances when he is not in a condition to pay his debts in the ordinary ' course, as persons carrying on trade usually do (ibid at page 345). But ib is aigued that though the hrrns may be insolvent the mdi viduai members nob having compounded \wth their separate creditors are not insolvent in their capacity as private individuals. The answer to that seems to me to be that a man is not insolvent unless he is unable to pay all his creditors in the ordinary coujsc, and he is none the less insolvent because to someof his creditors he is liable jointly with tome other person or persons. .Jsomehypothetical cases have been suggested .to show that a man might be " solvent " and 44 insolvent " at one and the same time, solvent as a private individual, and insolvent as the member of an insolvent firm.. In one sense, that is quite possible. For instance, a member of a firm might have •settled all his private property on his wife, -«o that when the firm failed he might have ...ample means, or at least the command of ample means to maintain himself and his family, and by paying cash keep himself in ■the position of having no private creditors, .and in that sense be in a solvent condition. But I do not see how it could be successfully contended that he was not in fact insolvent .merely because he had placed his property -beyond the reach of tne creditors of the firm. As a member of the tirm he would be within the mischief intended by the to ,be .avoided— the mischief <,of having what Willes J. has called "empty bags, with all the pliancy and want of consideration which proverbially belong to' them," elected to a responsible office. I must therefore hold (that these two candidates are and were insolvent, and so disqualified. I have now to determine whether the whole election is .■consequently void. I think not. These two candidates were properly nominated. Ib was no part of the Returning Officer's <ilut,y to determine .whether .they were eligible or not. His duties are ministerial, .and are not judicial. Five Dominations were duly made in the proper manner, It was the duty of the Returning Oifiqer to have returned these five candidates .as elected, and I consider it is .now incumbent upon (me to act as if he had done so, and I •were now , holding an inquiry , into the validity of the election of the two insolvent candidates upon a petition duly presented. If the Returning Officer had done what, in my opinion, he ought to have done, and suph.a petition had been presented, it would have been my duty to .declare the two insolvent candidates ineligible. In ' my opinion, therefore, the three candidates against whose election no -valid objection has been taken must beheld to b.e cjuly ejected, j and in, .respect; of the- , o.ther - b^o j .candidates q&imordipkry, vacancies Jiaye occv(iriied. ) l'hejeleciied, <ca P" - 4idates are P/^KShg,'' 'Thomas t, Cpets; ,$8 15s, will be allowed."", '- THE (OTH£ ( 0TH£E j f PETITIONS, ; ,]Mbr Cooper said, that, he* could 1 not, of ..eoqrW, accept ,the sanje judgment irijQit^ .^oHh ana City S6uth', wherejbhe,nomination paper's'- wetfe oh' the ! pr6p*er -printe'd iwms and addressed to Mr Cojlipr under

therery words of his appointment. In both these instances, ho aUied His Worship to declare the whole election void, becnusevof irregularities in connection with the Returning Officer. So far as North and South wero concerned, tho whole of the facts would bo admitted, viz., that the nomination papers wero not delivered at tho time and place required by the Act. There was n gubsidiai'y question to bo decided, viz., whether the nomination papers wero in pioper'fonn. It was then nj;recd to adjourn tho Court till 10.30 a.m. on Monday, when tho points raided will bo argued.