MAGISTRATE HOLDS POLL WAS VALID

Taupo Times, Volume III, Issue 133, 13 August 1954, Page 5

MAGISTRATE HOLDS POLL WAS VALID

CONVICTION AND FAYMENT OF COSTS Judgment was given by Mr W. A. Harlow, S.M., in the Magistrate's Court, Taupo, on Friday last, in the Saturday closing case. Four Taupo storekeepers, Messrs R. Casson, S. Kilford, W. L. Haines and W. Davies, were charged with failing to close their shops at 1 p.m. on April 24, 1954, for the remainder of the day, such day being a Saturday and the statutory closing-day in the Borough. The Court held that Saturday was the statutory closing-day, that the defendants must be convicted and that under the circumstances it would suffice by way of penalty if each defendant were ordered to pay £1 Court costs.

History of Case The offence • charged, said His Worship, was colloquially described as keeping open on the afternoon of the statutory closing day. In March 1947 the four defendants were granted exemption from the provisions of an industrial award which otherwise would have obliged them to refrain* from opening for business on Saturday. In passing, it might be mentioned that the exemptions were granted on the ground that the then Town District of Taupo had been shown to be a tourist resort with a large infiux of week-end visitors who needed the services of a general store. There was no opposition to the applications and the Magistrate who heard them granted the exemptions subject only to the condition that the shops concerned should remain closed throughout the whole of Thursday in each week. The arrangement appeared to meet with general approval. Other shopkeepers in various businesses obtained the like exemption, and Thursday came to be recognised as the regular "day off from work" amongst shopkeepers and shop-as-sistants in Taupo. The general situation was threatened by a requisition presented to the Town Board under Section 20 (2) and (3) of the Shops and Offices Act 1921-22 calling for a poll to determine the statutory closing day for all shops. Meantime the Town District had been elevated to Borough status and the poll was taken on October 31, 1953 in conjunction with the election of the Mayor and Councillors. Result of Poll j The poll, conducted under the provisions of the Local Elections and Polls Act, 1953, resulted in a substantial majority for Saturday, Thursday meeting with relatively poor support. The Minister of Labour was notified of that result in accordance with Subsection (1) of Section 20 of the Shops and Offices Act, and the Minister, .by notice in the Gazette of November 26, 1953, appointed Saturday as the statutory closing day in the Borough as and from December 5, 1953. It was established that each of the defendants had in fact kept his shop open after 1 p.m. on Saturday, April 24 last. It was fair to add that there was nothing furtive about this, and that in so doing they were acting on legal advice to the effect that exemption from the provisions of the industrial award carried with it the right to keep open throughout the statutory closing day. Counsel for the defendants now conceded that this was not the law, (vide Fielden v. Holloway, 1924, G.L.R. 524; In re Gilmour 1947 5.M.C.D. 172). Defence CounsePs Contention Counsel contended, however, that the appointment by the Minister was invalid for the reason that it was made pursuant to a purported poll which should be held to be a nullity, for the reason that the roll of electors upon which it was based had not been signedj by the Chairman of the Town Board as required by Section 16 (1) of the Town

Boards Act 1908. In the result, the "list" from which the roll was compiled had not been authenticated so as to produce a roll. The nonexistence of a roll was not, counsel had contended, a mere irregularity. In reply, the prosecutor had submitted that it was not open to dispute the result of the poll except in the manner prescribed by Section 66 of the Local Elections and Polls Act, stipulating a 14 days time limit within which a demand for an enquiry into the conduct of a poll must be made. Over and above that, he had submitted that by virtue of Section 20 (10) of the Shops and Offices Act, the production of a Gazette copy containing the Minister's notice of appointment concluded the issue, so that no one might be heard to contend to the contrary. Signature on Roll At the outset, continued Mr Harlow, he did not share counsel's view of the significence to be attached to the presence of the Chairman's signature on the electors' roll. In the first place, the latter's function appeared to be purely ministerial; secondly, its importance seemed to be considerably reduced by the terms of Subsection (2) and (3) of the very enactment which prescrib-. ed it (Town Board's Act, Section 16) ; and thirdly, in later legislation of the same nature the prescription had been dropped. Moreover, since a qualified person whose name was not on the roll might vote by declaration, under Section 34, Local Elections and Polls Act, and as he (the Magistrate) was firmly of the opinion that an enquiry under Subsections 66 and 67 of that Act included consideration of the qualifications of those who did vote (Section 70), he failed to perceive anything fundamental about the electors' roll, let alone about the procedure prescribed to authenticate it. Under present circumstances he was disposed to regard the roll as merely a necessary and very useful part of the machinery employed in the conduct of a poll. Further Considerations The next thought that came to mind was that if counsel's contention were accepted, then the result of any election or poll was liable to be upset on that ground at any time, perhaps years after the event. For instance, if the roll in the present case were invalid, then it must follow that the election held on the same date would be invalid. In short, if there were no poll, there was no election. Consequently, no Mayor nor Council for the Borough of Taupo and any act purported to be done by the latter must be regarded as null and void. He would, continued His Worship, expect the law to provide against such a contingency, and was reassured by the belief that Sections 66 and 67 of the Local Elections and Polls Act, including the stipulation of a limit of 14 days on the demand for an enquiry, and^ the like limit of time for commencing the hearing of the same, were designed to that end. In other words, in this particular field the Legislature had clearly enacted that stab-

ility, even, though it rest on initial error, was to prevail over the uncertainty that would result from the possibility of future litigation, arising out of a belated discovery of some defect in the chain of antecedent procedural requirements. In the outcome, he held that the want of the Chairman's signature on the roll amounted to no more than a passing irregularity, which might have afforded a somewhat tenuous ground for a petition under Sections 66 and 67, in which event the Magistrate holding the enquiry would have been empowered by Section 77 to determine whether it materially affected the result of the poll. Even, however, if the foregoing should be held fallacious, it seemed clear that the argument of the prosecutor must prevail by reason of the fact that Subsection (10) of Section 20 of the Shops and Offices Act expressly provided that the production of a copy of the Gazette containing a notice of the Minister's appointment of the statutory .olosing-day "shall be conclusive evidence that the same has been duly made according to its tenor." Court's Decision After discussing the words "conclusive evidence" and "duly," in the Subsection mentioned, in the light of several authoritative interpretations, Mr Harlow said that in the result, for one reason or another, it must be held that, until such time as the Minister of Labour might publish a notice in the Gazette to the contrary, Saturday was the statutory closing-day in Taupo. Each of the defendants must accordingly be convicted. He could well believe that the defendants were actuated by a commendable desire to serve the community within the limits of the law, and that they and their advisers entertained genuine doubts concerning the state of the law at the time of the commission of the offences. His hope was that those doubts would now be resolved. His Worship concluded by saying that the law had been obscure, and that Mr McGlone's presentation of the case had been masterly, and that he was indebted to it, as also to Mr Sproule's submissions for the defence.