Magistrate's Court. (Before Major Keddell S.M.) Thursday, December 13.

Waimate Daily Advertiser, Volume III, Issue 85, 15 December 1900, Page 3

Magistrate's Court. (Before Major Keddell S.M.) Thursday, December 13.

"Petition Against Borough Election. A special sitting of the Magistrates Oourt was held to Consider the petition 4jf seven ratepayers that 'the recent Borough election be declared void. The full text of the petition is as follows :— '- * - ' - - . We, the undersigned electors of the Borough of "Waimate," hereby doclare that we believe that it the election to iho office" K ol 'Councillors foi the Borough, of Waimste, holden at Waioh the 15th NoVbmber, 1900, at vyhich John Cameron, William Coltsnan, Robert Ink«ter. Thoruas Henry Jlann and' Frederick F. W. Jones wen* declared to be duly elected to the said offices, the said election i* void upon the following grounds- - (1) That the said so-called election was not held as by law required by a[Returning Officer *for the Borough of Waimate, Charles Akhurat, the person who assumed io act^aa'Deputy Returning Officer, having bo ' authority to act as Returning Officer or Deputy Returning "Officer. (2) That the said Charles Akhurst >was not appointed" as, a substitute by writing under the hand of any person •lawfully entitled to act as .Returning * -Officer -to the -said Borough. (3) ThfiK" in consequence of the -oircunaetaoces stated in the aforesaid jrounda, and that the notice of time .■and place of. the election or the situation x>f the polling booths was hot .given within the time or in the manner required, all proceedings connected (therewith were wholiy void» (4) That assuming that the said Oharlas Akhurst had pGwer as liaturn -4ng Officer to hold or conduct the said election, the public notice given of -the • day-and time for .receiving the nominations of -candidates was insufficient .and irregular, and fch&t the said notice stated that " nominations in the prescibed foVtta will bo received by the n 'doreigned up to 8 p.m. on Monday, No\ ember sth, i9OO, to fill the seats rondared vacant by the resignations of the five councillors inontioned," whereas the " Rpgulatiojjs of Local Elections Act, 1876," requires that nomiHafioue should be addressed to the Returning Officer and delivered at the buildings i_a ied m the notice bbforb noon of tlnj day appointed therein. (5) James Boytoa Milsom and Annul* CJolville, two - persons duly q mlified to be candidates for the said offieos of councillors, were, by the said ptuhc notice mentioned in paragraph 4, misled, and nominations in due .form, signed as by law required of the said Jauies Boyton Miisoin and Aithur Colville, were delivered to the said Charles Akhurst at the .Borough Couucil Offices, Wttimate, shortly after 12 o'clock noon, and before 5 o'clockin the afternoon of v the said sj\ November 1900, and tha said Charles Akburst thereon, refused jo accept the said nomiuations, 'and the 6 'id Jamee Uoyton fvlihoia and Arthur Oolville- ware -prevented from contest ' Ing thft sa d- elections, 6. Tha stud public notice mentioned in ground 4 hemof is bad, in that the place was nob hereby appointed .vithin the BoroiTgh ot Wamiate for nominaiuras of candidates. 7. That by reason' of the circuin stances stated iv the /oregoing grounds irregularities occurred in the proceed ings which tended to defeat the fairness •of tho said election, and we pray- fbafc enquiry may bo mude into the said eleoiioiw, under the provisions of the '" Regulation. of Local Elections Act, 1876," and that the said election may -be declared void." i i The petition was takfen -as read. IVfr Clement, who appeared on be- , ialf of f the five elected' candidates, asked leave to object toj,he..iirst three grounds. Xheßo might be brought i>vfor,e the Magistrate if he decided that „ ho had jurisdiction and could hear, the 4jase. If His Worship could review the status of the Returning Officer he could review the status of the Borough Couucil on the ground that it had no charter. He contended that this was •out of the jurisdiction of the Magistrate. A flaw might exist in the appointment of a Eeturning Officer years befire, but no steps at law conld be taken before an election took place. In any case this was entirely outside the jurisdiction of the court. Thi* Supreme Coutt was the only tribunal at which- the status of such an officer >couPd be questioned, and it was a^great absurdity to bring such a matter for ' adjudication after the evil was done. Mr Raymond Was of the opinion that his learned friend's arguments rill not touch the facts. Every local: body must from time to time appoint its Returning Officer. -.The contention *$w the- petitioners waa that the Waimate Borough Council never attempted to appoint Mr Akhurst as Returning ■Officer. If •he were not appointed he had no right to act, and the notices given were therefore illegal. The notices given for an extraordinary ! election must be given by the Return ing Officer. If given by a stranger, it (vine before the court under section 50 : •• That notice was not giren." His learned friend said that the status oi the Borough Council might be called into account* but a corporation had a, way of acting, and all its business, was by iesolution and recorded in its minutes. He quoted a decision of Justice .Denniston which proved thafc the only way the Beturning Officer ceuld be i -appointed was by a resolution of the . Council, duly minuted. Mr Clement submitted that nothing had b ien said to shake hie arguments. He held that as long as a person acted as Returning Officer- tha court had no power to question the validity of his appointment, .• . His Worship held that there .was nothing in that contention. Mr Raymond referred to Mr Taaffe -. being invalided frcai the Council, and Mr Akhurst- acting -as his deputy, without, however, being .appointed by the council. The second point went to the root of the matter, and was that Messrs Milsom and Oolville by not being allowed candidature had a very genuine grievance. The. notice given by Charles Akhurst, as Deputy Returning Officer, stated that the election ' "Would take, place at 3 p.m., whereas ;, -noon was the time given in the statute. f ,2hese two gentlemen,' ',bein£ qualified

candidates, presented themselves, with their nomination papers, to Mr Akhurst, aud wished to be Bominated. i Mr Akhurst had ascertained that his notice was improperly made and the \ notice of nominations was posted, | excluding Messrs Oolville and Milsom, who were thus misled to their i detriment. Thus -an irregularity crept in which tended to defeat the fairness of the election. The third , point on which he relied was that the notice calling nominations gave an erroneous i time and appointed no place for election. On that ground, also, the statute had not been complied with, and under all these circumstanoe's His I Worship should declare the election void. Charles Akhnrst deposed to being an accountant, acting for the past, four, months as Town Clerk, in place of thd i late Mr Taafke. Beyond the agreement between -Mr TaafFe and the Council, in which his duties as Returning Officer were specifier!, he was not otherwise j appointed -Returning Officer. Witness i was appointed by M* Taafie as his deputy, but hod not been appointed Ee turning Officer. He had given public notice of the election, calling nominations. Twelve were sent in, Mfißsrs Milsoui and Colville's being brought at 2 p.m., and were declined, although they were duly qualified candidates and their proposers and .seconders duly qualified electors, because they were later than the statutory time (noon), notwithstanding the fact that his notice had said 3>p.m. The election took place on November 15 ami resulted in the election of Messrs J. Cameron, W. Ooltman, T. H. Mann, R. Inkster and F. W. Jopes. The names attached to the petition to declare the election void were those of dfaly qualified electors. : Cross-examined by Mr Clement : Had instructions from the Mayor to conduct all business of the Borough, ; and it was well known to everyone that ! he was carrying on the election and no i one objocted to his acting. The Towjj Clerk's Offioa was within the municipa' i I district of the Borough. He furnished nomination papers to any electors applying for them. To Mr Hamilton: Followed the form used by the previous town clerk in. preparing the notice calling for nominations, excopt that he substituted 3 p.m, for noon. Both previous elac tions had been held on S iturday, and he took it that the ordinary office hours wore meant, 10 to 12 on Saturday and 10 to 3 on other days. Intimated to i one of their - nominators thao Messrs Milsoui andColvilie's nominations were i received too late. Fkbb became aware of the error m notified time at 1 30. James Boyton Milsom : Was one of the persons named in the nomination paper before the Court. Had seen th.9 holiGe for nominations and handed his in at 2 p.m., believing he wasia ampla time. To Mr Clement : Had been a candidate for previous elections her© aud I elsewhere. : To Mr Hamilton : His nomination paper was signed in the inormiig. He was e^t^uaely anxious to stand in this election. ' This was the case for the plaintiffs. Mr Clement would ask His Worship to again conaider whether h« could sake upon himself to investigate this validity of the appointment of an officer. The Supreme Oourt. was the authority wLnch should decide this point. The Electoral Act disoouraged any petition to upset an eleetidn on plea of illegality of appointment of a Returning Officer, if they had acted in thaif capacity. . " ' Mr ' Hamilton understood His Wor- • ship luled that he had jurisdiction in the matter of inquiring into the validity of the town clerk's appointment. He wished to submit that Mr Akhurst wa's the proper Returning Officer, for under authorioies quoted the official acts of a person acting in an office were valid, "whether he werejßily appointed or not. The Court here adjourned till 2 p.m. On resuming, Mr Hamilton wished .to point out that the Returning Officer had not, wittingly invalidated the election. Mr Raymond said his .clients had never suggested otherwise. He iiad, owing to the novelty of the position, committed some irregularities, but they were of opinion that he had done all in his power to further the election, and his acting had not rendered him j legally appointed. Then Messrs , Milsom and Colville were misled by the notice which Mr Ahhurst had erroneously published. The Incorporations Act provided that the clerk should fix a day. The- question for the Court to decide was whether, in the opinion of the Magistrate, any irregularity had occurred which tended to defeat the justice of the election. It had been an irregularity manifestly injurious to his clients, A long discussion took place re costs, Mr Raymond holding that the five councillors, by their action in defending j t;heir case, had- rendered themselves ll&ble for coa t>s if the election were quashed. His Worship was somewhat of the same opinion, holding that if they had not interfered in any way there was no liability. His Worship, reserved his decision till Thursday next.

Smith v Doomy. la giving his decision is this case, which was a claim by Mr.s Smith for damages to a phaeton by a horse sold by defendant, His Worship said there was not sufficient evidence to show that the horse . was of a vicious disposition. He would nonsuit plaintiff with oosta £1 8s lOd,

Tussicura, Most wonderful .remedy for coughs, colds, bronchitis, influenza, lungs Sufferers should obtain it at once. Give it a trial. Bronchial and stubborn- coughs - yield quickly to the curative effects of Tussicura" a wonderful ionic"* Anyone requiring boots, shoes, or slippers will save money by buying from Berry's. You get the beat quality at the lowest possible prices. Repairs a speciality at Berry's in the corner shop lately occupied by Coliett Bros. >dvt. Tussicura oures coughs, colds, incipient consumption ;, feive tbiawontlerfulremedj a trial. Tussicura cures bronohitia, catarrh of the Jungs, oppression 1 of th* 'cEegt, ete>. sold all chemUta.