THE AWARUA SEAT.

Otago Witness, Volume 11, Issue 2280, 11 November 1897, Page 62

THE AWARUA SEAT.

Wellington, November 5.

The Chief Justice this afternoon delivered a judgment of the Court of Appeal containing reasons for the decision of the court in the Awarua seat inquiry case. The judgment; pointed out that section 130 of " The Electoral Act, 1893," which provides that a eeat to become vacant assumes, of necessity, that it has been previously full — that ia to say, that there has been «. valid retura and a valid election. Section 9 provides ,tbafc every man registered as an elector and not di«quilified by section 8 is qualified to be elected * member. Section 6 prescribes the property or residential qualification of an elector. Section 8 disqualifies certain persons from being electors, but not an undischarged bankrupt. There was nothing, theretore, which would preTenfc an undischarged bankrupt from being registered as an elector, a«l in consequence from b^ing elected as a member. Section 130, which renders a seat vacant after it has been filled, could not be conefcrued so aa to alter the Mcprcis provisions of section 9, aud to disqualify from election a peraon qualified by the earlier sections. The object of the two sections was entirely dialincfc. Section 9 prescribes who is qualified \o be elected as a member, section 130' prescribes in what oases the seat of any member who has been duly elected, and must therefore have been duly qualified to be elected, is to become vacant. The question therefore was whether when an undischarged bankrupt has been elected his seat sit once becomes vacant under subjection 4- of section 130. The contention that it does so become vacant was based en tbe circumstance that tha words in the subsection are in the prevent f en*e. It was contended that the words thus refer to an existing B tale of things and to a person who3B status is that of a bankrupt. If this were tbe true construction it would lead to the absurd conclusion that although an undischarged banktupb \% qualified to be elected as a member he cannot sit as a member, but ceases to be a member at the very instant at which he becomes a member. In order to support such a construction, tbe court must be satisfied beyond all doubt from the terms of the statute that such was the intention of the Legislature. A review of the previously existing law on the subject threw a light on the construction of the act, nnd showed tbat if it; is contended that bankruptcy either disqualifies a person from being elected or vacates bis seat when it must appear tbat there is some statute which expressly, or by necessary implication, imposes disqualification or creates a vacancy. The context and other provisions of the act of 1893 which might throw light on the subject must also be considered. While the contention that the seat in the case before the court had become vacant rested on a change of language from "shall bee >mo " bankrupt in the Constitution Act to " is " bankrupt in the acts of 1891 aud 1893. But the natural inference on comparing the sections wasthat the draftsman of the latter acts conceived that the present tense was a neater form of expressing the same meaning and that he had no intention of altering the section iv substance. Section 130 of the act of 1893 starts with a governing clauae and euactx that a section "shall" become vacant if certain events happen. Ib contemplated, therefore, that these event 3 were to happen after the seat had been filled. It was a matter cf indifference, therefore, whether such events were afterwards expressed in the present tense or future, becanse the governing clause necessarily referred them to the future. It was the same thing to say a seat shall become vacant if a member "shall" die or if a member "dies." The interpretation and disqualification clauses showed that the words "is a public defaulter" ia subsection 5 must mean " is convicted as a public defaulter after election." In like manner the true construction of subsection 4- was, in the opinion of the court, that the words "is a bankrupt" mean "is adjudged a bankrupt after election." That construction "renders the whole section consistent, and avoided the extreme absurdity which would follow from a contrary construction. That section 130 refers to bankruptcy in future was shown by section 131, which provides that the registrar of the court in which a member has been adjudged bankrupt ohall within 48 hours after adjudication notify the same to the Speaker. If the Legislature had intended bankruptcy to be a disauaUfication tor

cleotion or for sitting as a member ib might! hare been expected that there would have been an express enactment •as in the case o£ Legislative Councillors and members of road boards and county and borough councils. 3?oc these reasons the court had determined that the seat of the member for the Awarua Electoral District had nob become vacant and had certified accordingly.