ELECTION UPSET

BAY OF ISLANDS SEAT

PETITION SUCCEEDS

BY-ELECTION NECESSARY

(By Telegraph.)

(Special to "Tlib Evenino Post")

KAIKOIIE, This Day,

A by-election in the Buy of Islands electorate must be held at an early date, an Elec'torui' 3ourt which sat here yesterday having upset Lho election of Mr. H. M. Rusliworlh (Country Tarty). Tho Court upheld the petition of John M'Aulay, of Okailiau, farmer, who objected to Mr. Rushworth's return on twenty grounds. Mr. R. M'Veagli, who represented Hie petitioner, dropped several clauses in the petition. Mr. Justice Iterdmau and Mr. Justice Ostler stated in their judgment that they allowed as valid six votes formerly rejected, and they rejected as invalid five votes previously counted as valid. All of the six votes allowed were in Mr. Allen Bell's favour.

PARTIES DO NOT APPEAR,

Mr. Kushworth, who did not object to the petition, did not attend the Court, oven as a spectator, nor did Mr. Allen Bell, tho unseated Reform candidate.

.When the Court resumed after luncheon, Mr. 11. C. Blundell, the returning officer,; continued his evidence. He said that the postal votes from Kawakawa Hospital were witnessed by Mr. C. E. Eeid, secretary of the Hospital Board. Witness authorised Mr.-Beid to witness the signature. The certificates and votes of four patients were the four in the ballot-box. Witness undertook to search through a collection of ballot papers (forwarded by the Clerk of the House of Representatives) for certain, votes. All the ballot papers used in the Bay of Islands electorate were brought to Kaikohe from Wellington by Mr. W. E. Dasent, Assistant Clerk of the House of Representatives.

Mr. J. A. Speer, solicitor, of Auckland, and formerly of AVhangarei, who acted as scrutineer at the official count and at the magisterial recount, said that hfi remembered two votes of which three names were struck out and the word "Bell" was written in. Those votes were cast at Moerewa and Kaeo. In connection with an absentee vote, the specimen signature was spelled one Tray, and another way on tho declaration, but it sounded the snme both wars.

Mr. C. J. Herbert, of Kaihau, railway guard, said that he came to the Bay of Islands electorate on 7th September, 1928, having been transferred from Tancatua, Bay of Plenty, where he had been for nine months. On applying for" registration as an elector in the Bay of Islands, he marked on the card "Less than three months." Ho had registered because he thought it compulsory- to do so within three months. Witness aud his wife voted for a Bay of Islands candidate.

Mr. C. H. Reid, secretary of the Ka•wakawa Hospital Board, said that he witnessed signatures at the- hospital, the returning officer having told him that he could do so.

Margaret Herbert corroborated her husband's evidence.

M. Goldsbro', who acted as poll clerk at Kaikohe, said that he crossed out the names as electors voted. . H© remembered Beatrice Eleanor Elliott and Beatric Myrtle' Elliot, of Kaitaia. Both women voted. They both voted under one qualification, but one name evidently missed being crossed out.

DISCREPANCY IN VOTES,

Mr. Justice- Herdman • drew Mr. M'Veagh's attention to the fact that Mr. Blundell had stated in his evidence that his return of 95/ postal votes in the official count was,due to a faulty calculation.. However, his total of the votes cast iwas stated in evidence as 8030, which the witness said included 5)5 postal votes, and not 94 postal votes, the latter being the actual number produced. "If thatibc so," remarked his Honour, "the total should bo reduced to 8029, and. a vote should come off someone. I can't sue how it can bo a mistake in arithmetic."

Mr. M'Veagh: "One of the postal voles was a notice to enrol." It had been shown during tho morning that an elector was sent an application for enrolment instead of a postal ballot certificate, although he had previously registered.

Mr. Justice Ostler, referring to the evidence of Mr. Goldsbro', said that the vote of Myrtle Elliot was bad because she was not on the roll.

Mr. M'Veagh said that it was impossible to identify the ballot papers used by the ladies because each bore the same number.

Mr. Justice Ostler pointed out that it would be difficult for tho Court to disallow oho of the votes' if the women voted differently. If they voted alike it would be fair to 'disallow one as invalid.

Mr. M'Veagh snid that ho understood Ihe two women belonged to different families.

The Court, adjourned so that a search might be made for the two ballot papers.

WHICH SHOULD BE ALLOWED?

The witness Blundell, recalled, produced, the papers. The women had x'oted differently.

Mr. Justice Ostler: "Wo don't know which to reject."

Mr. Justice Hcrdman: "You can't say' which is the vote o£ the woman validly entitled to vote."

The Witness: "It is impossible ■ to say."

Mr. M'Veagh said that he would call no more evidence, nor did he propose to address the Court.

Mr.. Justice Herdman: ""Why does the petition say 'was not duly elected,' or 'that the election was void'?"

Mr. M'.Vcagh: "If there, was an undue election it could be declared void."

Mr. Justice Ostler: "Two have not claimed the seat."

Mr. M'Veagh: "No." Mr; Justice Ostler: "There is no such thing as amending a return."

Mr. M'Veagh: "No. I have never heard of it. The Magistrate at a magisterial recount may amend a

return, but there is no corresponding provision in the case of an Electoral Court."

Mr. Justice Ostler: "I think it was the last Bay of Islands Electoral Court that declared that no return could be amended, or any prayer added to a petition."

Mr. Justice Herdman said that he believed that the provision was now statutory. Tho Judges left the Bench at 4.15 p.m. to consider their decision, which was delivered in tho petitioner's favour an hour later.

THE JUDGMENT,

The .judgment of the Court was as follows: — "At tho official count Mr. Bush worth and Mr. Bell received an equal number of votes, and tho returning officer, in exercise of his statutory rights, gave his casting vote in favour of Mr. Bell, An official declaration of the result of Ihe poll was published in the local papcrson 20th November, declaring Mr. 1.5 nil elected. A magisterial recount was' demanded, and Ihis was held before Air. Luxfoid, H.M., at Whangarei.

At this recount, after allowing certain votes which had been set aside by the returning officer as informal, and disallowing certain votes which had been allowed by the returning officer, the Magistrate found tho official declaration of tho poll to be incorrect, and that Mr. Kushworth had received throe moro votes than Mr. Bell. The Magistrate ordered the returning officer to mako an amended public declaration declaring Mr. Kushworth elected. "In December a petition was lodged with the returning officer, but the petitioner did not claim tho seat. On behalf of Mr. Bell, tho petitioner prayed that it may bo determined that Mr. Kushworth was not duly elected or returned, and that the ejection bo declared void upon the ground that certaiu votes were informal, and that certain votes disallowed should have been counted as valid votes for Mr. Bell, and also that there were certain irregularities in the conduct of the poll. The petition was duly served on Mr. Rushwortli, aud it has been proved at tho hearing that all the formalities prescribed to enable tho petition to be heard have been complied with. Mr. Kushworth had notified the Court that he did not intend to oppose the petition, and no one had appeared to oppose it.

DUTY OF THE COURT,

"This rendered it incumbent upon the Court to see that a clear case was made out on behalf of petitioner before disturbing tho poll, for whero the result of the election depended upon two or three votes, it was obvious that very little would turn the scale.

"The first allegation was that two electors voted by rujing out the names of all three candidates on the ballot paper, and then writing the word 'Bell' above the printed name. These two votes were allowed as valid votes for Mr. Bell in the official couut by the returning officer, but disallowed by the Magistrate on tho recount. They had looked at these two ballot papers, and in their opinion they should have been counted as two valid votes for Mr. Bell. Tho intention of the voter in each case was clear beyond doubt, and the only question was whether the writing of-a name could enable the name of a voter to be identified, in which case, tho votes would have to be rejected by virtue of section 149 of tho Electoral Act, 1927.

"After inspecting the two ballot papers, they thought that in neither case could the identity of the voter bo discovered from the handwriting. In one case the letters were in script, and in the other the writing was colourless and without distinguishing characters. They therefore 'thought that both these votes were wrongly rejected in the recount and should have been counted as valid votes for Mr. Bell. This would havo again made tho votes recorded in favour of Mr. Bell and Mr. Eushworth equal. In addition, the Magistrate counted as valid votes for Mr. Eushworth, three votes which had been rejected as informal by the returning' officer.

LINES AND CROSSES.

"In all three cases none of the names on the ballot paper had been crossed out, but lines had been drawn alongside the names of the two other candidates, no line having been drawn alongside Mr. Kushworth's name. The learned Magistrate, after examining these three ballot papers, thought that they each clearly indicated the intention to cast a vote for Mr. Kushworth, and so allowed them as valid. They regretted they could not agree with his opinion. In the Westlaud and also the Lyttelton election petitions which were tried in 1926 the Court held that a cross placed opposite the name of a was sufficient indication of the intention of a vpter to vote for that candidate. What influenced the Court to come to this conclusion was the fact that for many years in New Zealand all voting at municipal elections had been done by putting a cross opposite the name of the candidate intended to be voted for, instead of by crosing out the names ■of all candidates it *was not intended to vote for.

"They thought that in those cases the Court went as far as it possibly could, and in their opinion, the mere drawing of lines alongside certain names could not be considered evincing the •clear intention of a voter to vote for'the person not favoured with a line, any more than it. indicated the intention to vote for a person or persons opposite whose names lines appeared. In tho Hawkes Bay election petition, the Court refused to allow lines actually drawn through the Christian names of candidates, the surnames being loft untouched, to be taken as any evidence of intention of a voter. The lines merely drawn alongside the names of candidates were even less clear evidence of such intention. For these reasons they thought these three votes should have been rejected by the Magistrate as informal.

AN UNDUE ELECTION.

':The decisions they had come to on these matters were sufficient i\i themselves, without considering any further allegations of petitioner, to show the return of Mr. Eushworth at the election was an undue return. Mr. Eushworth was not duly elected, as shown in the amended declaration after the Magisterial recount. There were also other votes which, it was alleged, should have been counted as valid votes for Mr. 8011, and which were not so counted. In one case, after voting correctly for Mr. Bell, a voter wrote on the face of the ballot paper his number on the roll. That vote was rejected by the Magistrate, they thought quite rightly, on the ground that the figures enable the voter to be identified again. There were four votes recorded for Mr. Bell which had been made by postal ballot. Papers, which votes were rejected by the Magistrate on the ground that the certificates did not show on tho face that they had been witnessed by an authorised person within the meaning of tho regulation, although, in fact, they had been so witnessed. They did not think it necessary in view of their previous decision to decide whether the learned. Magistrate was right in rejecting these four votes.

'Again, it was proved that two persons, a man aud his wife, got on, tho roll before thoy had resided' in the electorate three months, and voted for Mr. Rush worth. These votes must be rejected also. It was proved that one Beatrice Myrtle Elliot, who w,as' not on tho roll, voted in tho name of Beatrice Eleanor Elliott. Beatrice Eleanor Elliott also voted. A scrutiny showed one of these cast for Mr. Bushworth and one for Mr. Bell, but it was impossiblo to define which elector voted for Mr. Bell and which for Mr. Eushworth. There existed, therefore, an. invalid vote counted a,s valid which may have been recorded for either candidate.

ABSENTEES' VOTES,

"It was also proved that an absent voter's voto was counted as valid, although not accompanied by a declaration made by the voter, as required by the regulations. The Magistrate, quite right, disallowed this vote as invalid, but found.it impossible to identify the ballot paper among 94 absentee votes, and they could see no way of identifying that particular voting paper. "Lastly, an absent voter's vote for Mr. Bell was rejected because, in Ms declaration, he had spelt the name slightly different from the way he had spelt it in the application for enrolment, although it was clear from a comparison of the two signatures that both were written by the same man. They thought this vote should have been counted as a valid voto iv favour of Mr. Bell. .

"Tliey hnrl liad proof of cortain irregularities which took place during the official count by the returning officer. This officer 'did not obtain the presence'

of a Justico of tho Peace at tho count, and consequently there was no certificate by a Justice as to the number of ballot papers, used. They found it necessary to § determine tho effect of this irregularity. It was clear that, quite apart from it, thero was sufficient.evidence to show Mr. Kushworth ,was not duly ■ elected, and they felt it their duty to so hold." Tho petitioner would pay his own costs.