THE STRATFORD SEAT.

Taranaki Daily News, 19 March 1920, Page 6

THE STRATFORD SEAT.

ELECTION PETITION SUCCEEDS. MR. MASTERS UNSEATED. BOTH CANDIDATES CONTEST BY-ELEGTION The petition of Mr. J. B. Hine against the return of Mr. Robert Masters as member of Parliament for Stratford, on the grounds of corrupt or illegal practices, has succeeded, and Mr. Masters has been unseated. The judgment of the Election Court was delivered by the Chief Justice (Sir Robert Stout) at Stratford yesterday. It was held by the Court that the payment by Mr. Masters for pictures and music at the King's Cinema Theatre on the night of December IG, 1919, though not a corrupt practice, was an illegal practice within the meaning ( of the Legislature Act, and tie election of Mr. Masters must be declared void. The Court decided that no incapacity should be placed upon Mr. Masters, and expressed the opinion that he was guilty of- no corrupt practice, and the illegal practice was done, openly without any idea that he was violating the law. The Chief Justice (Sir Robert Stout) and Mr. Justice Chapman presided. Mr. M. Myers appeared for the petitioners, and Sir John Findlay, K.C., with him Mr. P. Levi, appeared for the respondent. The by-election will take place in about a month's time. Both Mr. Masters and Mr. Hine have expressed their intention of standing again.

corrupt practice, but he was unable to do so. The great, distinction between a corrupt and an illegal practice is that there must be in the person guilty oi the act complained of a corrupt intention. As was said by Field J. in Bar-row-in-Furness 4 O'M. and H. 77 "A corrupt practice is a thing the mind goes along with. An illegal practice is a thing the Legislature has determined to prevent, whether i» is done honestly or dishonestly." In our opinion there is no proof of a corrupt practice so far as the two allegations referred to are concerned. Taking the two allegations in their chronological order, then, so far as the occasion, of the 30th October is concerned, there is no proof that at the time Mr. Macalister engaged Mr. Fox to provide music for the, meeting, there was any payment made or promised, and it may be that this arrangement does not came within ilie terms of Section ''in of the Statute. The words are: ''No person shall for the purpose of promoting or piucuring the election oi a candidate at any election be engaged or employed. . _ . " (c) 'to act or render service in any capacity, unless the payment is authorised by the fifth schedule hereto." There is no authority in the fifth schedule for employing musicians. The other section oi the Act bearing on the matter is Section ?>U, which says-. "No payment or contract for pay.went sliall, for' the purpose of promoting or procuring the election of a candidate at any election, be made • ■ • • (d) in respect of any matters whatever except as authorised by the fifth schedule hereto." We might have some difficulty upon the evidence presented to us in holding t.iat this transaction amounted to an illegal practice. We have, however, to consider the effect of what took place on the ltith December.

THE JUDGMENT. The judgment is as follows: This is a petition by Messrs Young, Hall and Hine, who are electors in the Stratford Electoral District, against the return of Robert Masters as member for the district, and who was declared duly elected by a majority of 01 votes. The first charge alleged in the petition is that the respondent was guilty of corrupt practices. These practices were:— (1) That in the King's Cinema Theatre in Stratford he gave valuable consideration by providing those present with entertainment in the form of moving pictures with music, and that that • entertainment wa3 paid for, or agreed to be paid for in order to induce electors to vote at the said election. (2) That the said Robert Masters on the 30th October. 1919, with a like intent at a meeting held in the Town Hall at Stratford provided persons present with entertainment consisting of music, which was paid for, or agreed to be paid for, by the said Robert Masters or his agent. As an alternative charge that he committed the offences of bribery by doing what was alleged, or. alternatively, that he was guilty of corrupt practices A further alternative charge was that if he 'was not guilty of corrupt practices he was guilty of illegal practices and that his election ws void. There was another charge that if the providing of music and pictures was not, an illegal practice then it was alleged that the payment made was for the purpose of exhibiting bills, addresses or notices. This charge was not pursued before us. As to the payment for the orchestra that performed on the Sflth October, 1919, there is an allegation that it was an illegal practice to pay the musical performers.

VOTES QUESTIONED. The next charge alleged in the petition is that a krge number of persons, who were registered on the electoral roll of Stratford", was admitted to vote and did vote in favor of the said Robert Masters, which persons _ were not. entitled to be registered as eleetors or to vote, ■ and asked that these votes should be struck off the poll. The charge in this paragraph of the petition, as well as the charges in paragraphs 11, 12, 13 and 14, were abandoned at the hearing after a large amount of evidence had been ta' on. The fifteenth paragraph asked that the votes of those persons who were present nt (he theatre should be struck off the poll as being persons who had been bribed. What happened in respect of the music at the Town Hall on the .10th October, and the music and pictures on the 10th December, liar? been shown by the evidence, as to which there is little ' dispute. Before, however, referring to these charges it may be well to state what ''The Legislature Act, 1!>0S," declares with reference to corrupt and illcn! practices at elections. Section 21.5 appears in that, part of the Statute which deak with "Corrupt and Illegal Practices" at elections and it defines what the offence of bribery is. It cannot, in our opinion, looking only at the facts here proved, be said that what was done constituted the offence of bribery within the meaning of Section 215. Nor can it be said that it constituted the offence of treating as defined bv Section 21fi. nor the offence of undue influence as defined in Section 217_ MEANING' OE 70RRUPT PRACTICE. The .words used, however, in Section ■ 224 are ft'"Auv person who commits any corrupt or illegal practice is liable, etc.," and it was urged that it was a corrupt practice because Section 12 of "The Legislature Act" tjniis defines corrupt practice: "'Corrupt practice' means bribery, treating, undue influence, or personation, as defined by this Act, or as recognised by the common law of Parliament, and includes any act declared by this Act to be a corrupt practice." This seeks to bring in what is termed the common law of Parliament. Our Crimes Act has abolished the common law of crimes, so far as indictment for primes is concerned, and it is very difficult to discover where the common ' law of Parliament is to be found. The British Parliament dealt with petitions through the agency of Parliamentary Committees for a long series of years. Election Courts were established, however, in 1868, upon a plan which wan followed in this country years later. Since the institution of these Courts more regular reports of these cases have appeared. -Counsel was asked if he could cite any precedent from decisions given in Parliament or in the Electtm Courts where something similar to what lias ta»»efi«d faert was to be a

LEASING THE THEATRE. An illegal practice has been thus explained; "It involves no question of motive, pure or otherwise. The only question the Court has to consider is whether there has been a breach of the Act." (Per Pollock B in re Walsall). What happened in this case war, that Mr. .Masters applied on 9th September by letter to the secretary of the Stratford Pictures and Amusements (Ltd.) for the hire of the King's Cinema for the night before the day of the General Election. On the 13th October, th, ; directors passed the following resolution: "That Mr. Robert Masters be informed that the directors have not decided to lease the theatre for meetings in place of the ordinary programme, but have decided to give him the first option if they so decide." On November 24 there was another meeting of the directors at which Mr. Robert Masters was present. He brought up the subject of the letting of the theatre on the night before the polling (lav and the directors passed the following resolution: "That Mr- Robert Masters be granted the use of the Cinema Theatre the night before the coming general election at the rental of the average takings of thirteen similar previous days of the week, also the use of tile programme and orchestra, the same privilege's to be offered to the Hon. .1. TV Hine should lie require same on any other night." Mr. Porritt states with reference to (lie words in the resolution "the use of the programme and orchestra wa.< to be given if required." that it was Mr. Robert Masters who made the suggestion that tl'.ev might be required. Mr. Robert Masters does not contradict, Mr. Porritf's account of. the meetins. The hall was used by Mr. Robert Masters and. the music ami' pictures were used at the meeting before he began his speech. The amount paid was .ClO fls Id, and was computed bv calculating the average takings of the theatre for thirteen of the corresponding days, i e.. Tuesdays of earlier weeks, 'we, therefore, have it proved to us that what Mr. Masters paid for was the use of the hall, pictures and music. He need not have used the pictures and music He did. however, use them, nncl \v n are forcer! to the conclusion that he used them for the purpose of procuring his election as a candidate. EXPENDITURE NOT AUTHORISED. Now the fifth schedule of the Act, as amended, does not authorise any expenditure for such a purpose. This expense, though incurred in connection with a public meeting and not otherwise, was not a necessary expense of holding a public meeting, nor was it nn expense of miscellaneous matters and it is not so returned in the candidate's ■ return of expenses. It was contended that, as the £lO Oa Id *m th« ronfaj

for the hall, whether the pictures and music were used or not, the cost of the pictures and music ought not to he considered as included within that sum. There are, it appears to us, two answers to this contention: First, Mr. Masters asked for the option of the use of pictures and-.music and got it included in the resolution of the company. It became, therefore, part of the bargain he made with the company, and the Court cannot now sever it. He obtained this concession by payment. Secondly, lie was not bound to use the music and pictures; he could have held a pubtic meeting without. He, however, used the pictures and music, for which be had bargained and paid, and we must assume that he did so because he thought it might promote or help to procure his election.

This becomes, therefore, an unauthorised payment underaction 2-20 and is an illegal practice. We may point out that. ft very slight payment Ims been held to be an illegal practice. (Southampton 5 O'M. and H 17-20). That was a payment, of only two shillings for a railway fare to bring an elector to the poll. It was held that it was an offence and an illegal practice, but that the Court had power to grant relief, and relief was granted on the ground that it was a' very small sum and did not affect the election, but Wright J. said m granting relief: "That with great reluctance and not wishing this to be a precedent for any other case whatever, W think this is within the sub-section " •I hat is to say that it was an offence which that Court was able to condone ann did condone, and, therefore, even if w e thought that the' election was not affected by the music or pictures still we have no power to condone a breach of the Statute. QUESTION OF COSTS. We, therefore, must determine and certify that the election of Mr. Robert Masters at the poll taken on December 17, 1919, at the electinn for the Strat= ford electoral district is void. The other matters that we have to consider are: First, whether any incapacity should be imposed upon the candidate, Mr. Robert Masters, and we decide that no incapacitv should be imposed on him and we 'shall so certify We are of opinion that he was guilty of no corrupt practice, and the illegal practice was done . openly without any idea that he was violating the law. As to indemnities to witnesses,,if asked for. ve shall be prepared to give an indemnity to Mr. Robert Masters] to Mr Macalister and to all the other witnesses we have h.card. The onlv remaining question 7s that of ' costs These may be divided according to the measure of success obtained by the respective parties, This was done in the Bay of Islands case (N.ZLR at P- 391) and in the Southampton case already referred to, and in many other cases. We think that the proper order in this case is: That the respondent do pay to. the petitioners their costs, charges and expends .of the petition and hear-' mg, so far as regards the paragraphs of the petition on which thev have sueweded, and that the petitioners must, Pay to the respondent his costs in connection with the subjects of disqualified voters and alleged irregularities in connection with the poll. It was evident that on taxation the Registrar must find that the case was prolonged by the investigation of these matters. _ These costs will be taxed by the hcjpstrar at the Supreme Court. Wellington, m accordance with the Legislature Act, IMS, and the rules thereunder. The Registrar will make a proper allowance to those engaged in the investipation ordered at the hearing, the cost of wh,eh falls on the petitioners. If any iurthcr question arises as to costs it may be referred to the Court in Wellington.