THE PUKEKURA LICENSING ELECTION.

Waikato Times, Volume XXII, Issue 1839, 19 April 1884, Page 2

THE PUKEKURA LICENSING ELECTION.

The adjourned hearing of the petition against the election of Messrs Gane, Morris, Fisher and Reynolds as licensing commissioners for the Pukekura district was held at the Court-house, Cambridge, on Thursday last. Mr Hay appeared in support of the petition, and Mr J. P. Campbell on behalf of the committee declared to be elected. His Worship the Resident Magistrate occupied the bench. Mr Hay in opening the case said it was brought under the 50th section of the Regulation of Local Elections Act, 1870, under the third disqualification clause, viz. , That any person voting who was not entitled to vote, or gave more votes than ho was entitled to give at an election, in which case any of s-uch votes shall be struck off the poll, and the candidates then appealing to have the highest number of votes shall be declared to be duly elected, and the election of any other candidate who may have been duly elected is void. His Worship had the power, on being satisfied that these persons were not qualified to vote, to declare the other candidates olected. This case was altogether without precedent. He would now proceed to call his evidence. Thomas Maunder deposed to holding the position of returning officer of the Pnkekui a Licensing District. He acted in this capacity at Ohaupo on the 4th March, and Mr Eit/,gerald acted in the capacity of deputy-returning officer at Cambridge West. --Mr Hay asked the witness if certain persons voted at the Pukekura election for four candidates instead of five. —Mr Campbell objected to this question on the grounds that the petitioners were confined to the exact terms of the petition by section 48 and 51 of the Regulation of Local Elections Act, and theiefore could not go into any matter or into any allegations that were not sot ont in the petition. All that was set out in the petition was ths t persons voted in the election that were not entitled to vote. Therefoie the court could not enter into the question as to how these individuals exercised their privileges, but was simply confined to the question whether persons voled who were not entitled so to do.— -Mr Hay replied and contended and a voter could not be considered to have voted until the returning officer made up the number of votes given to the candidate, and that if he found persons had voted for only four candidates their votes must be struck out, and the persons considered not to be entitled to vote. — Mr Campbell replied that if such was the contention of his f l iend the petition ought toha ve set out sub-section six of the first pait of section HO, of the Regulations of Local Elections Act, which leads "That any other modularity occuried in the proceedings which, in the opinion of the R.M., tended to defeat the fairness of the election." Otherwise that a result would anise, which is not contemplated by the act, viz., that in the event of Mr Hay's objection being sustained, a number <>f the electois would be disfranchised, and the candidates who leplesent the minority would be returned. Piesumiug pioceedings had been taken under sub-section six, then the whole election would be dfcUied void ; and if the magistrate considered that it was irregular for voters to vote for less than five candidates, and that Mr Hay's contention m regaid to part thiee to section 50 was correct, the result would be that the minority would be enabled by a sidewind to have their committee declared elected. This argument, of coui-00, being subject to the question (which would have to be decided bv subsequent argument), whether it was illegal for voteis to vote for le-s than five candidates, which Mr Campbell said ho was quite piepared to show that it was legal foi them to do. — His Woiship mled that subject to the leservation of the point laiscd by Mr Campbell of which he took a note, the question should be allowed to be put to the witness. — Mr Maunder was then asked to withdraw from the box, ponding the examination of Mr Gillies, clerk of court, Te Awamutu, in whoso custody the voting papers had been placed. — James Gillies, clerk of court at Te Awamutu, deposed to having received the voting papcis of the Pukekura licensing election from Mr Maunder. Papers produced and put in evidence. One of the voting paper> showed that an elector had left uncancelled only the names of four candidates.— Mr Maunder recalled. By Mr Hay : There were voters whet voted for a less number than five candidates. Could not say the number that so voted.— Mr Campbell admitted the declaration of the poll a«. it appalled in The Waikato Times. Chailes O'Biien, accountant, deposcl to having acted as scmtinecr for Captain Owen, one of the candidates at the election on the 4th Mai ch at C.unbiidge West. .Saw the ballot-box opened and the papeis counted. Theie were a great many ot the pxpers had only four names left uncnicoUcd. To the best of his belief there were <>\ei thiifcy such papers. Had leniarked to the icturning officer that he did not think these papeis weie legal, and the letuimng officei leplied that that was a matter for after consideration. -By Mr Campbell : There wore about eighty votmg papeis counted altogethei. — This finished the case for the petition. — Mr Hay then addiesssd the bench on the niei its of the case. He contended that the question befoie the court was not one of fan ness or unfairness of the election, but whether electois could vote for less than five candidates, which, he stated, reading subjection I of secli m 13 of the Licensing Act, 18SI, with section 1 ( .) of the Regulation of Local Elections Act, 1878, they weie not entitled to do. The act had evidently been framed for the purpose of preventing plumping, and it was unfair that a minority of the electois, by votingexclusivelyforlhreeorfour candidates, should be able to return a majority of a committee whose opinions were in accordance with their own. He contended that, piesiimmg only four candidates had been elected, the election would be \ oid, and the Governor would have to appoint a committee. He then drew attention to the 4th schedule of the act, quoting therefrom the following words ;— -" He voter) must leave only (blank) names uncancelled, or the voting papers would be invalid.'' He then quoted largely fioni " Maxwell on Statutes," and on certain cases quoted in the Law Journal, to show that a staid Compliance with the exact form of the schedule was necessaiy m all cases such .'is that before the coutt. He also refen ed to a dictionary to show that the word " only" must be taken to mean that the voter must leave five names uncancelled— neithei mote noi less. Mr Hay concluded by stating his opinion that, upon the grounds be stated, the election of the present committee must be declared to be void, and the candidates nevt in order be declared to be elected. Mr Campbell submitted, in opposition to Mr Hay's view, that the question before the court, seeing that he had been (subject to the leservation of the point formally taken) over-ruled by the court j that the question was entirely one of the fairness or unfairness of the election ; that where a specific remedy was pointed out by the act, as was the case in sub-section 6 of the first part of section 50 ; that remedy must be followed, otherwise a result would be brought about never contemplated by the Legislature. He contended that the act of voting must be held to be completed when the voter placed his paper in the ballot-box. Part 3 of section 50, under which the petition was laid, had reference to the capabilities of the person voting, and not to the manner in which he exercised his vote. He agreed with Mr Hay that the intention of the Legislature must be gathered from the whole of the act, and not from an isolated paragraph, or a particular schedule. With this view ha would compare a few sections of the act, and show the spirit did not bear out the contention of his learned friend. Mr Campbell then directed his Worship's attention to section 13 sub-section 5 of the Licensing Act, 1881, which provides, that every other shall have one vote in respect of each member of a licensing coirmittee. Having pointed out section 5, of the Licensing Act, 1881, incorporates the Regulation of Local Elections Act, he drew his Worship's attention to section 31, of the latter act, which provides, that the rates shall draw a line through the name of the candidate, for whom he desires not to vote. He showed that it would be impossible in many instances for a voter to comply with the contraction whioh his friend had- put on schedule 4 of the act. Presuming there were only three or four candidates whose Barnes remained uncancelled after drawing a line through the names of those for whom ! he desired not to vote, it would be impossible in such a case for him to leave uncancelled five names on the voting paper. ] He further contended that where a particular section of the act, and a schedule appended thereto were in direct contradictory th§ SQ.tjedu.le heing as he contended marely direotory muat give way to the express enactment in the -section.'. He then- drew bis Worship's attention to the third part of section 50, which provides that .if in^uy en.quiry, before »n i xvJYL. ? jrnjk'VO.tGi^is touna-£o~ haya?given njore votes than^Keis entitled^tb'

provision ; that if .any voter gave fewer votes than he was entitled to give, the should be struck (iff. The only ground upon which a contention could bo based that such votes were invalid was contained in the fourth schedu'e which he contended was only directory, and not mandatory, and stated as well known law that a form given in a schedule of an act is merely an example, and is to be followed only as far as the circumstances of the paiticular case will permit. He contended that the cases cited by Mr Hay only applied to exceptions to the geneial rule, and did not affect the particular case under review. He stated that in the contest in which it was used in the schedule referred to the word '• only " meant " not more," or "without more, 1 ' and (taking up the dictioiuuy which had been used by Mr Hay) showed that that was one of the meanings of the word only. He then referred to section 45 of the Regulation of Local Elections Act, which reads as follows :— " If at any election to fill any vacancy in any office no person Ls returned, or a less number of persons, and the vacancy is to be then filled, any vacancy lemaimng unfilled shall be deemed to be an extraordinary vacancy occurring on the day appointed for .such election." This section clearly showed that the election of a less millibar of the vacancies to bo filled was fully contemplated and clearly provided for by the act, showing that Mr Hay's contention in regaid to that point was uttetly untenible. Mr Campbell concluded by respectfully submitting to the bench that it could not do othei wise on the grounds he had stated than uphold the election of the committee who had been declared to be duly elected.— Mr Hay having replied to one or two of the law points raised by Mr Campbell, his Worship reserved his decision, which he intimated he would give at Hamilton on Friday, 23th inst.