LICENSING PETITION

Wairarapa Daily Times, Volume XII, Issue 3859, 16 July 1891, Page 2

LICENSING PETITION

Full Text of too Decision.

The following is the decision of Colonel Roberts, R. M., in the petition to declare the election of the Masterton Borough Licensing Committee void: —

Nine grounds were put forward for avoiding the elestion, two of which were withdrawn. I propose to deal with these grounds in order. First, there is the question whether the Returning Oificer was duly appointed. There is no question that the proper local body, the Borough Council of Masterton, made the appointment, and intended to make the appointment for the licensing district, but the resolution is said to be defective. I think that the appointment was sufficient, and further, that the irregularity, if any, did not defeat the fairness of the election. However, it would be as well I think for any future election that any doubt should be removed by a more formal appointment. The next question is whether the nominations were good. It is well settled as a general rule that negative words are imperative—positive words may be directory. Applying that rule, I should be compelled to say that the provisions of the Act are imperative and must be strictly complied with. Apart from this rule there is authority for holding the provisions imperative. Assuming the provisions imperative, were they complied with? The section provided that the nomination paper should be in the form in the second schedule. If it had said in the form or to the effect I might have thought the present nominations sufficient, as in the body of the paper the proposers are called " electors" and the candidate is called " candidate." The Act prescribes that the descriptive word " elector" shall follow the names of the proposers, and the word "candidate" that of the candidate. In this respect they differ from the prescribed form. It may be suggested that the omission is not of an essential particular, but it appears to me that every particular required by tbe statute must be assumed to be essential unless the contrary can be gathered by necessary implication. I can find no such implication, and authority seems to be against it. I am therefore of opinion that the nominations were invalid, from which it follows that the names of persons not candidates were entered upon the polling papers, by which the election is voided. Indeed, in the present case, if the papers are bad it must be so, as all the nominations were in the same plight. I think Mr Pownall's nomination was void. It

is unnecessary to give an opinion whether the withdrawal of his name was sufficient. In withdrawing, the candidate need only consider himself, but the formality of his nomination concerns the whole community. I, however, guard myself from

expressing an opinion, as it is unnecessary. Strictly speaking, it is unnecessary for me to notice the other objections raised to the election. I think it right to indicate my opinion on the several points, as it may have some effect in preventing future irregularities. The third question is whether Mr Dalrymple's nomination was good. I have decided upon other grounds that it was not, but I am not prepared to accede to the specific grounds of objection stated in the petition. The statute would be complied with when a formal nomination was handed to the Eeturning Officer, and if the proposers were tricked into nominating a person whom they did not intend to nominate, it would be clearly impossible for a Returning Officer to find that out. The fourth question I have dealt with. As no the fifth question, I am inclined to think that the objection that the wrong roll was used would be fatal without the second objection. The Act provides that the Returning Officer shall satisfy himself by reference to the roll that the person claiming to vote is entitled to vote. The Returning Officer here did not refer to the roll, but to another document, namely, that which was the roll ot che Masterton Borough before it was divided into Wards. It is not now the roll of the Borough, a new roll having been made according to law when the Borough waß divided. It is, however, said to contain identically the same names as the proper roll. Whether it contains the same names, omitting none and including ,no others, I have not examined. If the Returning Officer may use the obsolete roll he may use a copy of the proper roll, and I should then have to see whether it was a correct copy. This 1 think is not the intention of the statute, which is manifestly to avoid the possibility of allowing a vote to a person not on the roll or refusing a vote to a person on the roll. The appropriate way of doing that is pointed out by the statute, and no other should be adopted, I think section 27 is imperative, and if so it has not been complied with. The remaining objections are to the local option poll, but that poll itself is not attacked. The petition here is to declare the election of the Committee void, and not to avoid the declaration of the local option poll. Any Committee now appointed will have to govern its conduct according to the result of that poll. I must, I think, now consider the poll well taken. ThaG would appear to be an answer so far as the present position is concerned. Apart from that, however, I am not prepared to say that the election of a Committee and the taking of a local option poll are so indissolubly connected that the fall of the oue involves the fall of the other. It appears to me that the taking of the local option poll on the same day as the election was intended to be a matter of convenience and not a condition precedent to the election. It clearly was not a condition before " The Triennial Licensing Committees Act, 1889," and Ido not think it is now. This being my opinion I do not propobe to go into the alleged irregularities in taking the poll. The irregularity as to the presiding officer certainly appears to be serious, and should be set right in the future. I do not think the advertisements being in the one defeated the fairness of the election or ot the local option poll. Nor do I think that the badness of the local option poll (if it was bad), defeated the fairness of the election within section 50, sub-section 6 of " The Regulations of JLocal Elections Act, 1876." For the reasons above given I think the election void.