RESIDENT MAGISTRATE’S COURT.

Temuka Leader, Issue 2218, 23 June 1891, Page 2

RESIDENT MAGISTRATE’S COURT.

Temwka—Monbay, Jwe 22, 1891.

[Before C. A. Wray, Esq., R.M. ELECTION petition. The first case called on for hearing vu the petition of Thomas Barr, Daniel McCallam, John Ooopsr, George Praltley, Ohas. A. Williams, and Wm. McCann, which prayed that enquiry might bs held into the recent Licensing Election, and the same declared void upon the following grounds, Ist,—That the ratepayers* toll directed by the statute to be the roll to be uaed at the said election was not uaed as the roll for the said election, and, in consequence thereof, the fairness of the said election was defeated. 2nd.—That ratepayers entitled to vote at the said election were not allowed to rote. (Names mentioned in petition.) 3rd.—That in consequence of the wrong roll having been used, a great number of. persons entitled to rote were prevented attending and Toting, (persons named in petition.) Mr Adams, of Dunedin, appeared m support of the petition. Mr White *p-L peered to watoh the oase on behalf of the S.C. Licensed Victuallers Association. After some little argument as to the form the case was to be heard, it was arranged to take evidence first, and argument afterwards. Mr Adams stated that on the 26th May last an election for the return of five licensing commissioners took place. - Mr iStubbs acted as returning officer, aod appointed Mr Wills as bis substitute. The roll need was (hat for the Temuka Riding of the Geraldine County. From that roll a number of names were omitted. The Licensing District included the Temuka Road Board District, the Arowhenua and Temuka Town District, and in the rolls of these districts appeared a number of names of ratepayers, about 50, which had been omitted from the County roll. The petitioners contended that these persons were entitled to vote. Two other ratepayers bad been refused a vets. One named William Hide whose name appeared as George Hide, the other Jamas Hooper whose name appeared as Joseph Hooper. It was believed that the omission from the roll of these persons had materially affected the fairness of the election. Francis Worcester Stubbs, clerk to the Geraldine County Council, said that be was appointed Returning Officer of the Temuka Licensing Distiict, and acted as such on 23th May last. He appointed Mr William Wills as his substitute. The notice produced be believed to be thje official advertisement of tbs result of poll; Supplied him with a copy of tns roll, and produced the original from which it was compiled. Mr White asked if his learned friend contended that the roll now in the handaof witness was the_ waong roll. If so, it was no use going into the question of whether the names alleged to have been omitted were on it or not. Mr Adams only desired to show that the names of the petitioners duly appeared upon the roll. Mr White would admit that they were, and proceeded to say that the fact of a man’s name appearing upon the roll used was conclusive evidence of his right to vote. The fact of names being omitted did not affect the validity of the r«H. It had been properly signed, &e., and if some persons’ mimes were omitted they had no right to object. Besides, the question ot the validity of the roll was not one of the grounds of the petition. Witness continued : The names of John Anderson, Ah Mon, John Bjiu.ett, John Fisher, John Hamilton, J. Brusnahan, James Hooper, Wm. Cactwallador, AlesT Logan, James Curry, Wallace Laraman, Alfred Clinch, W. L. Daniel Mclunes, Alma Edgeler, Louis Fauvel, P. QtMara, Henry Williams, Flatman & Taylor, George Arras, Maurice Lawlor, WTPiim Armitage, James Naughton, Charles Bolaii, P. H. McShano, John Barrett, J. Mclntosh, Hemy Dalton, John Norton, Daniel Dwyer, Edward O’Neill, Mrs D. Findlay, John Seward, 0. W. Gimson, Thomas Twigg, John Hullen, Henry Thom is, William Hide, George Woodhead, jun., John Longhurat, James Grant, J. W. Miles, W. Stewart, Christina Taylor, J. W, Salmond, J, Tangney, Blunden, and Henry Smallridge woije not on the county roll. Patrick Manning’s name was on the roll, and there appeared also a Geo. Hyde. The roll was compiled on Jan. 6. 1890. That would be the roll used at county elections up to. the first of next mouth. Copies of the Voll were sold to persons requiring them. Mr Cooper was supplied with one. Could not say if George or William Hide was correct. Nearly ail the names mentioned appeared upon the new roll. Ha took it that the election was in the hands of the county council, and the correct roll to use waa the ordinary county ratepayers roll. By Mr White : The basts of the roll was the Property Tax Valuation Roll of 1889, 1890, and 1891. The County Roll was made up annual y. Prior to the issue of the roll it was corrected with tho Road and Town District rolls. After being corrected the various formalities were complied with. Mr Adams admitted (bat the roll wag/ correctly compiled. Cross-examination continued ; Could □ot s>y if the names were on the other roll when his was mads up. Thought they must h.ive been put on sinoa, The Geraldine County Council had b*en ap. pointed under the Licensing Act, 1881, Amendment Act, 1882, as the local body to conduct Licensing Elections. The boundaries of the Licensing District were the same as those of the Temuka Biding,

In the boundaries were included the Temuka Road District and the Arowhenua and Tenauka Town Districts. By Mr Adams: Any alterations made on the roll were made prior to its being signed. William Wills stated that, under appointment from Mr Stubbs, be acted as Substitute Returning nffioer at the election held in May. Used the rolls supplied for that purpose. The rolls were need at each booth, one for the licensing Committee and one for local option. By the Bench : The two rolls were ■like. . . T , By Mr Adams ; John Heap asking for a voting paper, which was refused. . Mr White objected. This was entirely new matter. Mr Adams said be thought be could ■how that the returning officer bad need two rolls wh’ch differed. He would not, however, prose the matter. | i Witoua cos lined • The rolls were deposited with the voting papers with the dark of the Court, Remembered W. Hide asking for a voting paper. Refuasd as his name was not en the roll, and witness was aware that there used to be a George Hide in the district. Asked him “ What is your name.” Did not ask him “ Are you the person whose name appear upon the roll as George Hide T” Did not recollect James Hooper coming to vote. Several persone came to vote and were refused. Did net refuse any man who gave bis name ae Laramsn. By Mr White: Did net object to any parson voting whose name appeared npon tbo roll. T. McGuire was a hotel keeper. Could not say if John Andereen had a property qualification. Did not refuse aoy person a vote without consultiog the toll, and referring to th# scrutineers. Francis Archer, clerk to the Tensuka Road Board, produced the roll in force on May 26, 1891. The name of George Anas w«e on the roll, also those of Wo. Armitage, Obas. Bolen, John Barrett, Daniel Dwyer, Mrs D. Findlay, C. W. Gimaon, John Hullen, John Hollwdl, Maurice L-iwlor J. McNaughton, P. H. MoShane, John Norton, Edward O’Neill, John deward, Thos. Twigg. Henry Thomas, and George Woodhead juar., were oa the roll now, but only feur were on the roll for the year previous. Edward Pilbrow, clerk to the Temnka Town Board ; Said that the roll he produced was for the year ending Slat Marsh, 1891. It wee the one in force on May 26ib. The names of John Longbnrst, Ellen Roddick, W. Sts wart, Christina Taylor, Williams and Colville, and Sir William Blnnden were on the roll. That of James Grant was not. Mr Adama said that (ha question of the pcaparation of thi ratepayers’ roll might arise. If it were not prepared be understood that the property valuation roll was the roll to bo used. Me White wee of opinion that only the ratepayers’* roll could be taken. Witness continued: The Barnes of J. W. Miles, T. McGuire, J. W. Salmond, J. Tangney, and W. H. Walton appeared on the roll. That of H. hmallridge did not. F. Archer, recalled : The roll he quoted from was for the year, ending March 81, 1891. Accounted for the oraissioa of names from the oounly roll from the fact of the Geraldine Oounly rolls being made ont in April. His roll would not be completed until abent the middle of June. The roll was l.kely to be altered for two or three months during the period for which a rata waa payable. Accepted alterations in the event of sales or ttansBy Mr White s When a road board election took place went through ihe roll to see who bad paid their rates, but not to make alterations. The names of Thos. Barr, John Cooper, Gee. Prattley, Chas. Williams, and W. McCann were not on the Temuka Bead Board roll. E. Pilbrow, recalled ; The Temnka Town Board roll was prepared in 1890. fbe names mentioned need not of necesaity appear upon the property tax valuation roll. Alterations were constantly being made. A. W. Gaze, clerk to Arowhenna Town Board, produced the ratepayers’ roll for the year ending 81st March, 1891. The same* of John Anderson, John Bennett, John Brosnahan, Wm. Cadwallader, Wallace Laraman, W. L. Duncan, Louis Fauvel, Flatman and Taylor, John Fisher, Ah Moo, John Hamilton, William Hooper, James Curry, Patrick Manning, D. Molnnese, Alma Bdgeler, Patrick O’Mara, 'Henry Williamu, Alex. Lo&an, James Hooper, and Richard Williams appeared upon the roll. The name of Arthur Clinch appeared ae Alfred Clinch. A number of the names were pat on recently as purchasers of. land from Government. From that end a number of other causes it might very from the ooanjy roll. William . Hide: Attended at the Temuka polling booth and wanted to vote, but was refused' permission, as bis name was not on the roll. If asked “ Are yeu the person described on the roll as George Hide?” should have answered “Yes." James Hooper, Arowhenaa, gave similar evidence. Believed his name appeared on the roll as Joseph Hooper. This'concluded the evidence. ; Mr Adams briefly referred to the several Acts under which the elections were bald, and claimed- that the whole question was what constituted a ratepayer. He contended that a ratepayer was * person whose name appeared upon any rate roll* The intention of the Legislature waa clearly (o give as wide a franchise as possible. Quoting from the. Ant, be contended that town districts, though not expreas’y mentioned, were analagous to road boards, inasmuch as they bad the control of roads and highways. The fact ' of being a ratepayer under any such local body formed a qualification to vote at a licensing election in which such a district was embodied. It appeared, however, that at least fifty persons were disfranchised; All these men should have been entitled to vote, and the rolls of the local bodies should have been used, as waa the the practice in boroughs and municipalities divided into wards. It was not con. tended that the roll used was tbo wrong roll under the circumstances, but that the other rolls should be nsed in conjunction with it. The roll supplied to Mr Cooper was stated to be the roll that would be used at the election, and it was quite possible that many persons, finding their names were net on the roll, might not hays bothpred to come up and risk being refused a vote. The result of the polling showed that 19 votes would have put in three candidates, 11 votes would have placed the highest of the defeated section above the lowest of tbo successful lot, and

40 votes would have entirely reversed the order of affaire. Fifty names were emitted from the roll, and he contended the court was{ bound to conclude that the fairness of the eleotion bad been materially affected. He farther contended that a great irregularity had taken place in refusing two persons to vote. The only question the returning officer could ask was “ Are yon 21 years of eg® I ” and " Are you the person whose name appears on the roll as A. B. 1 ” and 41 Have you already voted S ” The enquiry was not as to name, but as to identity. It waa clear that the substitute returning olfieer, acting on a wrong impression, had refused these persons a vote. As far as was known there were only a few who had been refused a vote, but it was possible that others hearing of it were deferred from coming forward. From all these points he contended that the fairness of the election had been affected. Mr White said his learned friend desired the Court to believe that the term road board included town boards. If so, it would have been very easy for the legislature to have said so. But as a matter of fact it said nothing of the kind, and it was not to be assumed that the Act meant something it did not say. If it had been intended that all rolls were to be used it would not have been left in doubt. It would have been expressly stated. bo submitted that the ratepayers' roll of the Temnka riding of the Garaldine county waa the correct one to use. Mr Stubbs had no authority to make use of the others. Further, no hardships had been done in the case of persons whose names had baen omitted from the roll. Proper notices bad been given, and persons interested should see that their names were there, It waa impossible that at every period of the year an absolutely correct roll coold be used. If his contention was right that the names of ratepayers in town districts should not be included in the roll then the petition was lodged by persona who had do qualification to object. Aa to the refusal to allow persons to vote, the returning officer need oot ask any question except at the request of a scrutineer. That paragraph afforded no grounds for upsetting an election, as <be vote could boye been restored or struck off before a proper court. The county roll did not differ from the other rolls at the time at which it was made up, and consequently no fault waa attributab'e to the returning officer. With regard to the assumption that a great deal of difference might have resulted if these names had been upon the roll that wss a yery open question. Only some six or ten bad been debarred'from voting and had they all voted one way of which there waa no evidence it would not have affected the result.

Mr'Adams briefly replied, submitting that the fact of an incomplete roll being furnished as the roll npon whioh the election was to be held would debar a number from coming to vote who were really entitled to do so. It was not correct that a Resident Magistrate could restore or strike off voters. That could only be done in the case of a Parliamentary election as the result of a scrutiny. The question put by the returning officer was an improper one. It was true that he was not compelled to put any question at all, but if he did put a question it should be in a proper form. It had made a material difference in this ease. If it was not intended to include town districts as well as road boards in the compilation of a rats roll for a licensing district practically the greater part of ratepayers would be disfranchised. Ho contended that all the rolls should have been used. The returning officer, although appointed by the council, was not responsible to them. He was only responsible to that court, and there was no reason why the county roll alone should have been selected for the purposes of this election. His Worship said that he should take time to consider the case, and reserved judgment. The court then adjourned until 2 p.m. CITli. CASES.

G. McDonald v. J. Rowe Claim £l6 18a lOd.

Mr Salmond appeared for the plaintiff, and aaid the defendant would not appear.

Murray Copestake deposed to having served a subpoena on James Rone. The case waa adjourned, and notice was ordered to be served on defendant to show cause why he should not be fined for not appearing. Thos. Ellis v. G. A. White—Claim £23 11a 2d. Mr Perry appeared for the plaintiff and Mr Salmond for defendant. In this ease the plaintiff sued the defendant for the amount seated alleged to be due for food supplied to men working at the Orari flax mill. The facta as disclosed by the evidence waa that on 28th of July, 1899, the plaintiff contracted to cook.for the hands <>i the mill, and Messrs Hitchcock and White, the defendant, guaranteed payment. They were to deduct payment from the men’s wages and pay the plaintiff On the 1:8‘-h of August the defendant asked to be released from the agreement, and he was released, Owing t» unsatisfactory conduct on the part of Hitchcock, the defendant went to Tim ru and had an interview with Mr Stumbles, the owner of the mill, with the leeuit that tbs work went on under the defendant's management until about the 18ch of September, and it was for food supplied to man daring this time that the plaintiff sued. The evidence of the plaintiff,tJohn Duncan, Robert Eagle, and Herbert Roscoe went to show that the defendant .White, after bis interview with Mf Stumbles represented to to the men at the works as well as to the cook that he (defendant) was employed by Mr Stumbles as manager at £3 per week, and that Mr Stumbles would pay everybody. In support of this it was shown that Mr Stumblespaid for horse feed on aa order in which defendant signed himself “ G. A. White, Manager,” For the defence, Geerge Stumbles, G. A. White, and A. Marlin gaye evidence. It was to the effect that the mill was originally leased to Hitohcoek by Mr Stumbles; that Hitchcock became embarrassed, and that the defendant consulted Mr Stumbles, telling him that there were 30 tons of flax on the ground. Mr Stumbles advised the defendant to prepare this 80 tons for market, and pay all claims with it, Mr Stumbles never employed the defendant, and be bad nothing to with it. He neyer received any rent for the mill. The defendant acted on Mr Stumbles advice,, but when the flax was forwarded to Messrs Wood, Shand, and Co, they found that Hitchcock had already drawn £SO on account of it, leaving only £3O 14s for distribution amongst the men. The defendant paid nis own wages £3 per week, and the other men and handed £6 15s 2d to the cook, being a balance whioh remained. He neyer represented himself as qianager for Mr Stumbles, and be never guaranteed to pay the cook. The ease lasted from 2 p.m. till 6 p.m., and ' after a tedious hearing His Worship considered j the defendant rendered himself liable by the

ho made. In equity and good conscience he must conclude that the first thine to pay out of the proceeds of the flax sold ß was the food the men eoniumedi The accounts were then gone inte, and after deductions wore made judgment was given for £9 6s and costs. The Court then rose.