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Title: The electors of Bruce versus the law courts of New Zealand : the magistrate's judgment in voiding the Bruce licensing poll freely criticised : learned counsel for the petitioners appropriately handled : the state of the Licensing law in Bruce and the colony opened up in an address to the electors of Bruce
Author: Fraser, P. B. (Philadelphus Bain)
Published: Bruce Prohibition League, Milton, N.Z., 1903
A VIGOROUS AND ABLE SPEECH ' A MOST DRASTIC CRITICISM."—/..
Dr minimis non, curat Lex.
The Electors of Bruce I ersus The Law Courts of New Zealand.
The Magistrates Judgment in Voiding the Bruce Licensing Poll Freely Criticised; Learned Counsel for the Petitioners appropriate!. 1 ! handled; the state ok the licensing law in" Bruce kND rin ( !olony
OPENED UP IN
An Address to the Electors of Bruce
DELIVERED BY P. B. FRASER, M.A.,
Willi; Vpi>en<lix, contai on to Parliament and truce, and Ashborton : ! texl of the Decision of His Honour Mi Justice William- in Bastings v. Stratford.
Respectfully submitted to Members of Parliament and to the Electors of the Colony.
PRICE 6d.J
"q>ir. ifilioi
■
1903
COURAGE!
Say not the struggle naught availeth.
The labour and the wounds are vain,
The enemy faints not nor faileth,
And as things have been they remain.
If hopes were dupes, fears may be liars;
It may be, in yon smoke concealed,
Your comrades chase e’en now the fliers,
And, but for you, possess the field.
For while the tired waves, vainly breaking,
Seem here no painful inch to gain,
Far back through creeks and inlets making,
Comes silent, flooding in, the main.
And not by eastern windows only,
When daylight comes, comes in the light ;
In front the sun climbs slow, how slowly !
But westward, look, the land is bright!
ARTHUR HUGH CLOUGH.
ADDRESS TO THE ELECTORS OF BRUCE.
Ladies and Gentlemen, Fellow-electors in Bruce, —I appear tonight to address you as an elector in Bruce. The question I address you on is not now a question of license or no-license; that is settled, and settled according to law. The electors of Bruce, by a majority of 847, have lawfully declared for a proposal that Parliament has placed within their power to decide, and before that proposal—-no-license—can be altered a like majority of the electors of Bruce have, at a lawful poll, to decide that new licenses shall be granted. Let the issue at the outset be clearly put before the electors of Bruce and the people and Parliament of this colony, and no power on earth shall defeat the electors of Bruce on this occasion. What is that issue? It is not the issue of license or no-license. It is the question whether we are a free people. It is the question whether the liquor-sellers of Bruce shall govern and dictate to the people of Bruce. Let it be clearly understood that there is no dispute now as to whether the lawful majority of the people have voted nolicense. That is settled, and settled three times over. First, it was settled when the returning officer announced the verdict of the people. He had counted the votes, and the majority was for nolicense. Then the Liquor party demanded a recount. They were not sure whether at all the booths a correct count had been made. That was a perfectly fair demand. They could reasonably doubt whether the voice of the people had been declared. They could appear as bona fide electors, interested in honest government. The law gave them, as it gave every elector, power and right to see that a correct count had been made. And what was the correct count? It still more increased the majority for no-license. It •doubled that majority. That second count should have been final. It showed a majority of 847 in favour of no-license—a majority of 5 to 3 and 31 to spare in favour of no-license. There was the will of the people unmistakably expressed. And, if the vote had been the other way, as to alleged irregularities at the poll, there never would have been a word about them. That is, no bona fide elector, willing to obey the Constitution of his country, the rule of the people lawfully expressed, would have sought, on the ground of legal technicalities, to quash the verdict of the people. Electors of Bruce, such an attempt in a free country is little short of a crime. For, mark you, the plea of irregularity was not made that there might be a fresh appeal to the people on the same conditions, with the irregularities rectified. The attempt to quash the verdict of the people was made that there should be no verdict at all, that the people should be coerced, robbed of their rights, and that the voice of nearly 4000 electors should not be heard at all. Now, what has been the fight of our people all along the ages ? It has been the fight of the common people against the men of privilege and of
4
I III; ISSUE AT STAKE.
wealth. And afti i li n. ghting our Bi people have declared that caste and capita] shall not (luminal result of the polls. A free poll tor a free peopli n tin battle cry lor ages. Do you think v. link so low in the County of Bruce—we who sent so many oi our countrymen to the Boers in South Africa that a minority should not trample on the right ijority there -do yon think we are going tamely to submit to a publican tyranny and b .m having effectivi roi i in the government ot 01:1 country hen opponents claim to be the party of liberty, for the voice 01 people, for liberty for the poor man. I say. God help the poor man whose true liberty is in the hands of such a party. What chance ha- a poor man against them? Was it for the liberties of the poor man that the strongest bar ever engaged in the County of Br no less than five lawyers ware engaged in court for the liqu ipeared before a stipendiary magistrate it the will of the people: Well, what followed that second recount The publicans went scouring all over the county in seal' This titled to do. if it were a bona fid fresh election, or to see whether, in fact, the voice of the p had been against them But that was not tin desire; they the verdici of tin people. Well, having got hold of a lot trivialities, they submit! lawyi if by any technicality they could attack the verdict of the people. Then they came with these irregularities befor. magistrate, made molehills into mountains, and. after all. what find .' He found that t - of them, did not affect the result. That was thi finding in fact, and that settled the count for the third time. Neil the fait that 'strict tim< ' was not kepi, nor the fact that 1 irregularities occurred, prevented rote, nor was a single unqualified vol vote. The "other irregularities" notv the magistrate is : "As the majority '•>■ : 1 do not think the tTected thi ; these words be written in letters of gold and -en! round the colony of New Zealand: let them bi -cut to the Parliament of Xew /..aland; let them be he Right Hon. Richard Seddon, tin champion of Li who sent 5000 Xew Zealanders to South Al struggle—the righl pi ople to bavi an at the poll- Li t the Righl Honour: aown a- a champion of a ority 7 of iln electors of Bru tin . are -till in tin | hy odd-. 1. d ,0 the South Africa and to the rnment that a minority ■ iple of New- Zealand- nay. th publican oligarchy rule B and a-ks tl
5
INTEGRITY OF MAGISTRATE NOT IMPUGNED,
it they think of it. 1 believe out | made :• to have it rectified. I believe the Parliament of New Zealand, wl them with a petition from will validate our poll. And our conl ■ will ha\ blow for rty as has no: r long. Parliament never allow a petition of the kind to lie tried by stipendiary nditions the san for parliamentary elections. This i- the last poll that will void on such legal as do not ..it.
Well, now. how are we defeated! The facts, thrice tested, are on our side. Hot that we are in the same position on the issue before the electors as if we had been defeated by an wh jority It the law. gentlemen: it is the law! Let i tin outset that I am not going to attack the inn of tl rate. I have no need to. and certainly no conceivable I believe he ha> done bis best, according to his 1 Whether the best has in en done is unite another matter. I believe it has not ! ;ook an u bly narrow letter of the law. 1 believe he i- inconsistent and tory in his interpretation of it. I believe his judgment B onsist nt with his judgment at Mataura, and also is inconsistent with itself. I believe he has committed an error of judg lie wrong in his reasoning, and defeated, not onlv tic will of the people of Bruce, but the intentions of Parliament. But all this I can say without questioning, or even doubting, his Tt is the commonest of experiences for a stipendiarv udgment to be appealed against. It i- not uncommon to find his judgment upset on appeal. But appeal can be made without questioning the magistrate's integritv. And it is this appeal I now make. It happen- that there is no appeal to the Supreme Court from his decision in this matter; and our onlv appeal is to the forum of public opinion and to the High Court of Parliament. And this is tin appeal 1 now make. I ha\ ion to believe that the magistral other thin reluctantly given, as he says it was. He admits that reason and parliamentary law are on our side. But he says he was driv' legal decisions and legal technicalities to void the poll. And I have no doubt he wili be with us in our appeal to the High Couit of Parliament to validate the election and maintain the liberties of the electors of Bruce and of the whole colony. All I say is. he had a bad law to administer, and that he bungled a bad law. But I have no reason to question his integrity, and do not intend to embark on the turbid stream of insinuations or slanders against the magistrate. All the same, my task is sufficiently difficult. To bring before a popular audience in a single address all that could be urged against the decision of the magistrate would detain you till midnight. But I think it is not impossible to make clear to every
THE CZAE OF NEW ZEALAND.
elector of Bruce the true bearing of the present situation, how i has been brought about, and the way out of it. At the same timi 1 have the wider object of appealing to tin electors of the colon and to Parliament.
Now, there are some preliminary explanations and argument- I must address to you if you are to have an intelligent grasp of the situation. The first thought, the first question, in every elector's mind is: How is the one poll void and not the othi r It is just ~s certain that no-license was carried as that Mr James Allen was ( lected for Bruce. In the licensing poll the sitting member, let us say, is Mr License. At the election he was defeated by an overwhelming majority. Yet still he holds his scat as firmly a How is that? How is it that there is no petition against Mr Allen ! How is it mandatory for the magistrate to declare the lawful member (Mr Xo-License) defeated and unseated, and Mr License elected 1 Nay, how comes it that if there had been a petition to unseat Mr Allen, though all the irregularities charged against Xo-License and many more had been committed, it would not have affected his seat one jot,! Has the liquor-seller a life tenure, a perpetual life interest in his seat, and do what you will and vote how you will, shall he sit there and rule vou for ever? Are we in Russia or in the British Empire, in Bruce or Siberia? In Russia they do not pretend to have popular laws and rule for the people by the people. Thev have the Czar. It is the law here—at least, we pretend it is the law—that the people shall rule. Yet the liquor-seller here is above that law. He is the Czar of New Zealand. And. in the words of Lord Bacon, our laws are like spiders' webs, where the small flics are caught and the great break through.
The first thing we must be clear about is. What are the conditions of the contest ? How is the licensing poll conducted, under what law? And the next question is. If a petition to void the election is presented, what court tries it. and what are the rules of that court '. The two questions are quite distinct, are easily confused, are much debated, and have been grievously confounded ill the present contest. First, then, the poll. How is it conducted? Section 7 (1) of the " Alcoholic Liquor- Sale Control Act. 1895. says: "The returning officer of the electoral district shall, upon the day appointed, proceed to take the licensing poll in the manner provided bv the Electoral Act for taking the electoral poll:" and then follow clauses stating that the machinery of the electoral"— that is. the parliamentary poll—is to be duplicated for the licensing poll. Words could not be clearer or more explicit. There is the one principal returning officer everything else is duplicated. If that is the manner of taking the poll, what is the manner and what the court for trying a petition to void the election I This is a totally distinct question. The first contest before the people at the polls has to do with the merits of the case, license or no-license, Mr Allen or his opponent. The trial of a petition has nothing o do with the merits of the contest whatever. The simple question
9
THE LICENSING POLL.
is, Was the poll conducted according to law! Was the candidate or proposal carried! Ai the outset, however, an important factor 111 favour of the validity of the poll should In- borne in mind. If it has been shown on a careful recount that the candidate or proposal returned bona tide by the returning officer has unmistakably the majority, then in every case of charges of irregularity, whereever there is doubt, the verdict shall be given in favour of the accused—that is. here, in favour of the validity of the poll. Now, I cannot get out of my mind the impression that here was a source of confusion in the magistrate s mind, whether the electors or publican- should have the benefit of the doubt, and live skilful lawyers did their utmost, by able and sophistical reasoning, to obfuscate the mind of the magistrate on this point. Once, however, the question had been settled, that no-license had the majority—and it wa3 settled by the magistrate himself—every doubt, in short every difhcultv. in the magistrate's mind, as it would go to an accused person, should have gone in favour of the validity of the poll. What the magistrate has done in the case of Bruce is to give his doubt in favour of the accuser and not of the accused. What, then, are the conditions for trying a petition? What is the court procedure? Sub-section (o) of the Act quoted says: " If the result of any licensing poll is disputed, any fifty electors may require an inquiry to be held in manner provided bv section 48 and the subsequent sections of ' The Regulation of Local Elections Act, 1876,' and the matter in dispute shall be determined m the same manner, mutatis mutandis, as if the said poll were an electoral poll." Now. you might think, in vour simplicity, that all this was clear and patent to the intelligent elector. The petition is to be tried; "the matter in dispute is to be determined in the same manner, mutatis mutandis, as if the said poll were an electoral poll.'' Very well ; the case is brought before the stipendiary magistrate in the manner for bringing a petition under section 48 of The Regulation of Local Elections Act. and what do you discover? Is the matter in dispute settled "in the same manner as if the said poll were an electoral poll"? Oh no! It is to be tried as if it were a " Road Board poll!" Now. this is one of the most surprising and cruel things that you have ever heard of. 'The Regulation of Local Elections Act, 1871).' has for many years been in peaceful operation for the regulation of such local elections as County Councils and Road Boards. It provides a directory for two things. First, a directory for the returning officer as to the manner in which he is to conduct the polling ; and second, a directory to the stipendiary magistrate as to the manner in which he is to try a petition to void that poll. These two things are wholly distinct, are easily separable; yet they may be confused. And they have been grievouslv and cruelly confounded in this contest. For what is contended for bv the legal minds of our opponents is that " electoral poll " in section 7 (o) of the Alcoholic Liquors Act quoted means not " parliamentarv poll," but " Road Board poll." And. as I say. by one of those surprising
7
8
QUANDOQCTE BONUS DOBMITAT HOMEBDS,
and cruel decisions of legal mind stupify the layman and enrage the reformer, thi petition i if not only the constitution and procedure of the court were the -aim- as for try Road Board poll, but as if al-o the polling ii is, the manner of conducting the poll—were for a Road Board election. And. ae you may be ready to blame Mr Cruickshank for this, let me say that he is not to blame. It was a |Ud_ this ruling in Bastings v. Stratford, and thi magistrate, it is held. was bound by that ruling. For that jud the grei respect ; but even Homer hj n to nod. and to multitudes, at least of lay minds, and of parliami ntarians, too. it will appear that this able and n. not simply nodded, bul school and studied Euclid, we used to b bv supposing the contrary to be true, am hat inferei followed. If you could draw absurd ii you deemed the conclusion >i the Licensing Act, "that the mutter in disput rmined in the same manner a- if the said poll wen an electa < poll, mean that thi> directory for the returning officer is tie for a parliamentary poll, everything is plain sailing, ami nothing i a licensing poll that will not void a parliamentary poll : but if the words imply that electoral poll means Road Board poll, then it follows that the directory for the returning officer i- the directory for a Road Board poll. It is this legal ruling that is the chief source of all our and. as 1 have -aid. Mr ckshank is not to blame for this at ail event- It is held he bound bv that ruling. And wdiat follows . A mass of inconsistt acies, contradiction.-, legal quibbles, sophistries, and heart-break-. First, as regards it- iTeet 'in the returning officer. There an to him to conduct the elections the Electoral Act and the Alcoholic Control Act-, and the* alone. Tin-- directory- -the one for the parliamentary poll, and thi for the rising poll. Now, as already quoted, the Alcoholic Act. section 7. gives his directory for tin licensing poll, and says: 'The returning officer of the electoral district shall, upon the day appointed, proceed to take the licensing poll in the manner provided by the Electoral Act for taking tile electoral poll ; and then follow direction- -o clearly making the two polls run parallel, as if on opposite rails, that he i< directed to do a physically impossible thing. " to give the voting paper and the ballot paper simultaneously to the voter a physically impossible thing, when the two officers, on< for the parliamentary poll and the other for the licensing poll, arc siltine. a- the\ musl do. at adjoining tables. The two polls are a! ncarlv parallel a- the rails on a railway, and open and close at the same hour, and there is ju.-l one principal returning officer to con duel the polls and declare the result. Hut if hi- manner of conduct •he respective polls is called in question, what happens! If thi conduct of the parliamentary poll is called in question, he ha- t<
I'HiAl. OF LICENSING POLI
appear before two judges of the Supreme Court, who have all the powers and procedure of the Supreme Court. What morel He takes his directory, the Electoral Act, into court, and he shows that he conducted the election in the manner provided; and if i have been technical irregularities among his subordinates, he claims the indemnities provided in section IC7 of the Electoral Act — namely : "An election shall not be declared invalid by reason of any irregularity in any of the proceedings preliminary to the polling, or by reason of a "failure to hold a poll at any place appointed for holding a poll, or by reason of a non-compliance with the directions contained in this Act as to the taking of the poll or the countin" of the votes, or by reason of any mistake in the use of the forms contained in the first schedule hereto, if it appears to the court having cognisance of the question that the election was conducted in accordance with the principles laid down in this Act. and that such failure, non-compliance, or mistake did not affect the result of the election.' That is how an electoral or parliamentary petition is dealt with, with the result that scarcely ever is one presented, and more rarely still does one succeed. Hence you have in vour parliamentary election.- a free poll for a free people. But if the licensing poll is called in question, and the question is. Has Mr License or Mr No-License been returned? then, in the first instance, a recount of the votes may be ordered by the stipendiary magistrate, and this recount is conducted by the magistrate himself. Now. this was done in Bruce; the magistrate recounted the votes, and doubled the required majority, and declared Mr NoLicense to be duly elected by a majority of 5 to 3 and 30 to spare. So Mr No-License was unmistakably elected. But if. further, the question is raised that the result does not represent the true mind of the people, because people were prevented from voting, or persons not entitled to vote have voted, then, in that case, the returning officer has to appear in tin Magistrate's Court to answer his accusers. He appears, and he understands that the authoritv of the magistrate is limited to the jurisdiction of hi» court. He understands that the directory or procedure for the magistrate in hearing the petition is the directory for hearing a petition in a Road Board election ; but he is equally sure that his own directory for conducting his poll is that for the "electoral" or parliamentary election. The two things are wholly distinct—the directory for the manner of hearing the petition, and the directory for the manner of conducting the election. They are distinct, and can be kept distinct. When, however, the unfortunate returning officer appears in court —now. after the recount, like a chairman of a meeting, representing the people—he is met with the astounding legal conundrum, that follows on the decision in Bastings v. Stratford, that since he is to be tried in the same court as would try a " Road Board " returning officer, he is no longer to regard himself as an "electoral'' or parliamentary officer, but only a returning officer for a Road Board. This. I say. is surprising and astounding.
9
"DID PARLIAMENT INTEND THIS ABSURDITY?"
He says, first, that the directory for the manner of conducting th licensing poll is given in the same Act by whii .Ileel into court, and that Act expressly says : The returning officer for the electoral district shall, upon the day appointed, proceed to take the licensing poll in the manner provided by the Electoral Act for taking the electoral poll.'' And, he says, secondly, the same Act that brings him before the magistrate declares: "The matter in dispute shall be determined in the same manner, mutatis mutandis, as if the said poll were an electoral poll.' "It does not matter. the magistrate tells him. "By the legal decision in Basting- v Stratford, I will try you as if you were a Road Board returning officer, and if you or your subordinates have wilfully or negligentlv done anything or omitted to do anything that the directory in the Local Elections Act requires. I will void your election, and fine you not more than fifty pounds.'' I say. the returning officer wonders where he has got to, equally with the electors for whom he now stands. He wonders if he has dropped into a court of justice in Turkey, and whether the magistrate 1- not a pa-ha. Xo. says the stolid magistrate ; but " I am somewhat like an automaton, and it is mandatory for me to be ' strict, so that if you err but in the extent of a hairsbreadth, I will void your election, and fine vou not more than £50." And so the farce of trving the returning oftic r and the electors of Bruce proceeds. Senousiv. I ask, Can this be the law, and if it is the " law.' is it the mind, was it ever the mind. of the Legislature I By express enactment, the licensing: polls were taken from the category of " local " questions. Such a eategorv was deemed too parochial for a national question, and accordingly the small licensing areas were abolished, and the areas made coterminous with the parliamentary electorate. Then the polling- was made on the same day. and the election on the licensing question was run on the same line, on parallel rails, so to speak, with the parliamentary election. The same officer is appointed to conduct the two polls, and give the papers " simultaneously. Moreover, he has sent for his guidance, and he sends to ali the booths, the Electoral Act and the Alcoholic Acts, and these alone. He does not receive, nor does he -end. the Local Elections Act. under which lie is now tried. A copy of the Local Elections Act could not hi been found in a -ingle booth in the Colony on the day m question. He does not receive neither he nor his officers, the Local Elections Act, yet he is now tried, and the electors arc tried, on an Act not sent to them, and on a directory for polling, dated 1576. for Road Board elections' How i- it possible, T ask. to conduct two polls " simultaneously ,111 different din How i- it possible for either officers or people, even if they were fully warned, to carry on "simultaneously" two different ami important elections on a " common or parliamentary law " and on a much stricter road board law," and not land themselves in interminable confusion and perpetual defeat.' Did the Legislature intend tin- thin- 1 t>lo the Legislature intended thus to give a free poll to a free
13
A TWENTIETH CENTURY TRIA
14
people, and so to arrange this election that the people of the Colony should be perpetually governed by a publican oligarchy, and be immersed in constant, vexation-, oppressive, and expensive litigation . Such a supposition is impossible to believe. I decline to believe that the Parliament of New Zealand arcia band of conspirators, with ideals and purposes that would disgrace a Boer oligarchy. Such. then, is the preliminary cause of our present troubles —the ingenuity of legal minds and the power of the liquor oligarchy employing splendid counsel, to wrest judgments from the courts on legal technicalities against the people. And, accordingly, we have the confession wrung from Mr Cruickshank in his Mataura judgment : "By the common law, minor irregularities will not disturb any election, unless they can be shown to affect the result; but I am bound here by the ' local election ' statute, and I have to decide the question in the same manner as if it was a dispute into the conduct of a Road Board election." Again, in his Bruce judgment, he says : " The court in this matter is somewhat like an automaton.''
Well, now, where have we got to now? The returning officer and electors of Bruce are being tried for their political liberties, as if it were a “ Road Board election.” where not thousands but only a few hundreds make up the rolls. Let it proceed, and let us watch the struggles of the unfortunate magistrate and the equally unfortunate returning officer and electors of Bruce. The magistrate has got his “ Road Board ” Act, his bed of Procrustes, let us call it; and iif the returning officer of Bruce is too long or too short for the dimensions of this instrument of torture, the magistrate will lop off a limb, or strike off the head altogether, and leave the officer, whose electoral box is the palladium of the liberties of the electors of Bruce, a quivering and decapitated corpse. What, then, are the dimensions of this bed of Procrustes, this “Road Board” Act? Section 50, subsections 2 and 6, gives the two relative sections under which the magistrate grouped all the irregularities and technicalities, covering in their enumeration almost the entire alphabet, alleged against the returning officer and electors of Bruce. These sections are : “ (2) That the poll was open beyond or was not open within the hours hereby required, and (6) That any other irregularity occurred in the proceedings, which, in the opinion of the magistrate, tended to defeat the fairness of the election.” Now, at the outset, lam prepared to say and prove that the returning officer and electors of Bruce conducted both elections—parliamentary and licensing in an honourable and creditable fashion, and that probably in no other electorate were they more honourably and creditably done. Molehills have been made into mountains, and powerful legal microscopes have been turned on the conduct of the proceedings to detect a flaw, with results most creditable and honourable to the returning officer and electors, and discreditable and dishonouring to their persecutors. And if the magistrate had exhibited in Bruce the same courage and judgment as he displayed in Mafaura, and been con-
L2
THE " STRICTNESS 01 -lIVI.Oi K
-i-tent wit!, himself, " loi withstanding, the p would havi been dismissed, and ion upheld. But an of eoun within the bounds of the Bruce electorate, appeared at Milton before the stipendiary mag nd pounded into him a- many legal sophistries and quibbles a ted the judicial intellect, and reduced him. as he appears to confi mething like an automaton.
And let us study the result in !. cision. First, under section 2, on the question of time [f "strict ■ i kept the election i- void. But sidering this question of " strict time." even in a Road Board election, it was not necessary for the magistrate to divest hi: his reason or his courage. It was mandatory—the capital sentence. out to bring in tit n obligatory than for a jury to bring in a verdict of .murder in a triflng assault. Just because the court could pronounce nothin than a capita] sentence, final and without appeal, it might have been evident to a magistrate, who maintained his balance at courage, that the capital verdict itself was not to bf brought in or, >us, frivolous, and technical grounds. For if ii had 1 Parliament would have taken some care to pro 1 ommon standard " linn try booth in the electa men- judgments a- their watches : None go just alike, yet each belii ■ ".-n." Henec. when the watches of the wit varied, it could not be certain which was right, and both might be wrong. Abstract "strict time." apart f: lurpose for which the time is stipulated, is a figment of the brain, and could not have been found kept in every booth in any electorate in the colony on the day in question.
. at Manuka Creek the question of "strict time" could not have been decided that day. By the parliaments be opened his box at a-quarter to -ix: the licensing officer slated it was ten to six. Both officers counted first the parliamentary vote-, and. as th igistrate reasons that to count them " would not take many minutes.' Now. notice this "would not take many minul This is merely opinion—it is not evidence, and it is not faet. The question i- not "would, but did it take many minutes? And the magistrati had no positive evidence for his opinion, but much to the contrary. Having got thi- " would, he draws the conclusion: "It i> certain there must have been a premature closing of the booth. 1 hold, therefore." I i line wa- no: Manuka Creek.' Upon such Him- and precarious reason the ma bring in a verdict involving capita! sent ace. Bear in mind, the electoral poll had nothing to do with the licensing poll, and that an irregularity of the electoral or parliamentary did not in any way luct of the licensing officer. A- the magistrate says in hi- Mataura judgment : " 1 have nothing
16
ILEGAL Nh ETIES AT BERWICK
fto do with the pranks of the electoral officer. Now, even if abstiact strict time had been laid on to Manuka Creek by electric telegraph, copyright, from Wellington, there is every reason to believe that the licensing officer kept it that day at Manuka. Everyone knows that it might have taken much more time than the magistrate thinks would suffice. To count 53 electoral votes, take note of, and discuss with scrutineers doubtful markings, might take, and often does take, 20 minutes or more. Was it mandatory, then, for the magistrate to adopt that precarious reasoning? As a matter of fact, I believe it was some time after six when the licensing officer reached his own box. It is certain, therefore, contrary to the magistrate’s opinion, that there was no premature closing of the booth. In fact, it is difficult for any sane man to bring himself seriously to discuss abstract “ strict time ” in the case in question, for not a solitary voter disturbed the peaceful flow of time as it approached the fateful moment of 6 p.m.
Next, take Berwick. Here, again, it is not the simple question of fact; but, while the sentence is death to the political liberties of the entire Brace electors, the magistrate himself finds by a process of legal and inconsistent reasoning that this booth was closed 15 minutes. At this precious booth, a private residence, only 33 voters polled. Not one human being was precluded from voting, or voted before or after the hours of opening and closing, and yet the magistrate brings in the verdict: “Closed 15 minutes; the sentence is death to the political liberties of the electors of Bruce.” How did this come about? This frightful and scandalous offence was committed in this way; —The licensing officer went a few chains to vote at another booth “ over the border,” in the Taieri electorate. He left the electoral officer in charge of his poll till he came back. It took him 15 minutes ; and then remember this: he performed the same kind office for the electoral officer, who went and likewise voted. Not one voter came during his absence. Now, if the proper evidence of whether a door is locked or not is that someone has tried to open it, so the proper evidence, one would think, of whether the poll was open—that is, in the magistrate’s own words, “ the operation or opportunity of voting ” —would be that someone tried it and failed. That would, at all events, be positive evidence of closure. And it is evident the magistrate was ill-assured that this poll was indeed closed. At any rate, it is a legal opinion, for which he gives three inconsistent reasons, which, to the lay mind, cannot but appear inconsistent and unsatisfactory. Remember that at Waikawa, in Mataura, the booth was locked twice over for 20 minutes, and that a voter, who sought to enter the booth to vote, found it locked; and yet the magistrate “ held ” that the poll was open all the time. Again, it is legal opinion; and the magistrate gives three reasons for his conclusion. First, he asks, was there a lawfully appointed substitute? and he answers in the negative. He quotes section 112 of the Electoral Act, where it permits the appointment of a substitute, in writing,
17
HOW THF.Y Al'l'KAl: TO THE LAY MIND
for illness or other sufficient caua As bis Bubstitu! was not appointed in writing, or for sufficient causi . the magistral declares he was not appointed at all. " The cause of absence was purely private business—to vote in anot!. This is not a ' sufficient cause within the meaning of the section. This is an opinion which many will question, and a man of more courage would .-tiled it differently. Nov.. is it " purely private bu tendering your vote on election day? Private, indeed, may be your reasons for voting in one direction or another, but the act itself is one of the most public and honourable a man can discharge. In the ancient State of Greece penalties were laid on the citizen who failed to vote, and, as a matter of fact, our own Colony penalises the citizen who fails to vote by striking him off the roll, and at great cost provides an opportunity of voting for even,- elector. More than that, the very section preceding the one quoted by the magistrate says: "(3) A deputy-returning officer shall be entitled to vote as an elector of the district on the roll whereof hi- name is duly entered as a qualified elector, but he shall not have the power hereinafter conferred upon the returning officer of giving a casting vote " ; it being the expressed will of the Legislature not to disfranchise anv. not even the principal returning officer, whose vote is reserved, in case of equality, to decide the poll. And it is upon this narrow and illiberal view of a great public dutv and privilege that the validity of the election turns. If the magistrate had deemed this public and honourable dutv. when it could be discharged without in any way infringing on the equal right and privilege of another elector, a " sufficient cause " for a 15-minutes' absence from a booth where only 33 voters polled all day, it would have saved him from trampling on the rights and liberties of 4000 electors for a mere legal figment. And if the cause of absence " was not sufficient." then the magistrate might have stopped there ; but he proceeds to give a second reason for closing this poll 15 minutes, and thus voiding the election. " Again, he Bays, " tin electoral officer cannot ac,t a> deputy-returning officer for the licensing poll, as the law is clear that there must be two deputies." Xow. what " law is clear' The magistrate, in his Mataura judgment, as already quoted, declares : " I have nothing to do with the pranks of the electoral officer. Very good. Then what has he to do with the pranks of the electoral officer at Berwick ' Nothing whatever; if he chose to close his poll and go home, or if he chose to act for the licensing officer for 15 minutes, what has the magistrate to do with his pranks! lie was certainly a fit and reliable man to act for 15 minutes, and if the magistrate had nothing to do with his pranks as electoral officer, he was a -it man as a substitute And as to the " law that there must be two deputies," 1 ask. What law I Not the " licensing " nor " local " law it not plain to the lay mind that if there " must he two deputies," and if the electoral officer vacated his position to " act " for the licensing officer during tin- latter- absence, then it was the electoral poll and not
THE LOT OF A RETURNING OFFICE]!
18
the licensing poll that was closed for 15 minutes thai day? And. although the electoral poll had been closed all day. the magistrate had nothing to do with the "pranks of the electoral officer. Apparently litt -d with his precarious reasoning, the magistrate gives a thud and apparently conclusive proof that, as there was no 1. gal substitute, the poll was closed. " Again." he says, " the deputy-returning officer being in one of his functions, at least, an judicial, hi cannot by a common law delehis functions to another. Now, this third reason proves too much. Whatever the common law is. it is contradictory of the magistral. I reason, that by section 112 of the Electoral Act Every returning officer and deputy-returning officer may appoint, in writing, a substitute to act for him in case of being prevented by illness or other sufficient cause from attending, or continuing to attend, at his polling place." If. bv a common law, "he never could delegate his functions to another, what is the meaning of these very words explicitly stating that he can? Further, if the magistrate can quote section 112 of the Electoral Act against the returning officer for not appointing his substitute in writing, how does he not also quote and state the relevance of section 165 of the same Act. which says : " (165) An election shall not be liable to be questioned by reason only of any defect in the title or want of title of the person by or before whom such election or any polling was held, if such person was actually appointed or was acting in the office giving a right to preside at any such election or polling." Now. it will take some legal fencing of no ordinary kind to overcome these objections to the magistrate's reasoning on this matter. If it is replied that section 165 of the Electoral Act is not in the Regulation of Local Elections Act. then. I reply, neither is section 112 of the Electoral Act. quoted by the magistrate. Does it amount to this, then : that when the returning officer pleads that his licensing election was conducted. like a parliamentary election, under the Electoral Act. he is nevertheless tried under the Local Elections Act as if the election was a Road Board one? And. further, when he is tried under the Local Elections Act. may the Electoral Act. notwithstanding, be quoted whenever it is against him, but never when it is in his favour? Indeed, as to the legal subtleties involved in this single question, so far from their being within the scope of the intellects of the returning officer and the unfortunate electors of Bruce, one may say that the whole question might, with advantage to all concerned, have been turned over by the magistrate for settlement 'amongst the subtle intellects in Milton's " Paradise Lost." who
“ reasoned high
Of Providence, foreknowledge, will and fate
Fixed fate, free will, foreknowledge absolute
* .« .. i»lv, "in, juicftiiuwieuge aoboiuu: And found no end. in wandering mazes lost.
When the magistrate himself gets out of the labyrinth of his own reasonings into the light of day he declares: " There was, therefore,
19
ASTRONOMICAL TIME AT WAITAHUNA GULLT
at this polling booth for the licensing poll neither substitute no returning officer either de facto or de jure, and the poll was thu closed for 15 minute-. Here, it appears, that instead of i; a manifest certainty that this booth for 33 voters was closed foi 15 minutes, when nothing but lit entry at the door it is a highly complicated and knotty and inconsistent arg whereby it is "proved.'' If a man is innocent till he is provec guilty, if the accused should have tin benefit of the doubt, have not the returning officer and i Bruce good reason to ask Why did the magistrate not give them the benefit of the doubt I But no: hi' "find- the poll the capital sentence of political extinction on the return and elector!: of Bruce. Such is this most heinous ius offence in the matter of time.
Yet there is Waitahuna Gully 10 i "It is tour minutes to 6" at Waitahuna Gully on this fateful day. "Strict time "isto be kept—it is a Road Board poll ding, and if you err a minute or two the heaviest penalty that can be inflict d will fall, not on the officers, whose watches may err, but upon the whole electors of Bruce. It doe- not matter whether the n of the poll is affected one jot by what is done or not done. The law of this Road Board Act. so we are asked to believe, is that "strict time" must be kept. Lei what absurdities « out of this legal figment at Waitahuna Gully. The n says: "The evidence of both sides agrees in the main, and ■ that the poll was definitely and intentionally closed by locking door and opening the ballot boxes at about four minutes to 6. Within two or three minutes of such closing, the door was unlocked to admit a belated voter, who clamed it was still not quite 6 o'clock. The vote was taken, and the door once more locked. There was thus a clear and distinct breach of the sub-section." Xow. I defy any reasonable mind to follow the magistrate here. What is the offence disclosed against the licensing officer.' Is any offence whatsoever disclosed against him ' First, as an elector of Bruce, have T not the right to ask Is the magistrate sure that cither of the disputant watches was correct? 1- it not very likely that neither was absolutely right to the minut. where " three minutes " are m dispute? A " twclve-and-sixpenny Waterbury" was one of the authorities quoted—and are the electors of Bruce disfranchised on the evidence of a twelve-and-sixpenny Waterbury I Xow. to examine the magistrate's reasoning. He s ;l vs : 'The poll was definitely and intentionally closed by locking the door and opening the ballot boxes at about four minutes to 6." As to the facts, not only is there no evidence to support this statement—it is directly and minutely contradicted (1) by the scrutineer for the Liquor party, and (2) by the returning officers. Mark you, the magistrate has nothing to do with the electoral box: he has to do only with the licensing box. He says both " boxes " were opened on closing the doors. The Liquor scrutineer—Quilter [evidence 1
111 l .UKI.YK AND SIXPENNY WATERBURYS
17
Times']- says that when the door was closed only the electoral box was opened Further, he says: "The door had been closed three or four minutes before Mr Henry knocked. Nothing had been done to the licensing ballot box in that time. Now. where 1- the offence dii Where is it shown that it was not within " - time " that this elector voted? There was a difference of opinion, as might be expected, as to the correct time when a minute or two was m dispute. What if the " door " had been closed, however, " intentionally," if the time was not up? The door was closed and locked for 20 minutes twice over at Mataura—for 40 minutes in all,—and yel that did not close the poll or void the election there. If at a minute or two before 6 the licensing officer closed the door " intentionally," preparatory to opening his box. the offence, if offence there were, was not committed of opening his box. Meanwhile, in the nick of time, a free and independent voter taps at the door. " Time is up! " No. it is isn't ' " Well, let us see ' The twelve-and-sixpenny Waterburys are consulted ! " A minute to spare' Xow. so long as the voter tendered himself to vote before 6. it did not matter if the process of voting went itself beyond the hair liDe of 6 p.m. traced by the Waterburys. Where, then, is ', ; any evidence to show that the "polling''—"the opportunity of voting —was closed before 6. or was open after it ? Not a particle ; but much to the contrary. What reason is there to doubt the Liquor scrutineer and the licensing returning officer's evidence? He said: Witness locked the door, and one of the ballot boxes was opened. It would be about three minutes before 6 o'clock that he locked the door, and it was subsequently that Henry voted. After Henry had left the booth the door was again locked. The booth was not open more than nine hours.'' Yet. in the face of that evidence, the magistrate holds there was a clear and distinct breach of the subsection " about " strict time. Again. I ask. What offence was disclosed? Surely, in the name of common sense, this magistrate appointed to try people for their lives does not convict and sentence a man for an " intention " that, in point of fact, was not carried out. He appears to reason that as Mr Barnett "intentionally'" closed the " door," that that is equal to, in fact, closing the poll—i.e.. " the opportunity of voting." The sole question is, in point of fact. What did Mr Barnett do? If he " intended " to close the poll two or three minutes before the time. but. in point of fact, altered his mind before it was too late and allowed a man to vote, where, in the name of reason. I ask. was an offence disclosed? Carlyle somewhere has a powerful sentence on the chasm that separates " the hand on the trigger " and " pulling the trigger " and that chasm was here. Mr Barnett had his hand on the trigger; in point of fact, he did not fire; nobody w-as hurt or even frightened ; and this magistrate brings in the verdict, " Murder"; sentence, "Death." An "automaton" magistrate, with a vengeance! It appears to me that the returning officers acted with far more wisdom, prudence, and courage in the discharge of their duties than the magistrate in the discharge of his.
21
THE SCHOOLMASTER ABROAD.
Such, then, is all the evidence on this subject of time. Such are the reasons compelling tl. -etc to bring in a capital verdict, and inflict a capital sentence, d< priving the- electors of Bruce of their power at the polls. On such flimsy and precarious reasoning is his verdict based. And seeing, as he alleges, that this capital sentence is so strict. i-> mandatory, was it mandatory to bring in that capital verdict itseTf I Few but partisans will believe it,
Now, if these are all the counts against the electors of Bruce on the section dealing with time, what are the charges under subsection 6? That subsection says "That any other irregularity occurred in the proceedings which, in the opinion of the magistrate, tended to defeat the fairness of the election." Now. you must bear this section in mind, for a mass of false reasoning and nonsense has been talked about it that might have disgraced an assembly of Hottentots. The able counsel for the publicans pounded a lot of sophistical reasoning and nonsense into the magistrate as to the meaning of this section, and he appears to have been completely obfuscated bv their sophistry. I think I shall make it clear to every elector in Bruce that the magistrate has had the wool pulled over his eve- bv these clever gentlemen. It is a wonder he did not see the twinkle in their eyes. They knew better; and I think he knows better by now.
Now, what does this subsection providi I " That the election shall be void if any other irregularity occurred ■which, in the opinion of the magistrate, tended to defeat the fairness of the election.'' If you are to detect the fallacy of the magistrate's decision under this section, you must get a clear meaning of the words employed. What is the magistrate's meaning? He says: "By the common law an election was voided if the irregularities proved were such as to affect the result of the election; but it is clear that a certain practice may be unfair ;n its tendency without, as a matter of fact, really affecting the result of the poll, and it is this class of practice which comes under the sixth subsection.' The moment the magistrate got this nonsense into his head the voiding of the election was a foregone conclusion. And there never co popular election conducted under the sun but it would be instantly upset if such were the meanii the subsection in question. Where did the magistrate get this notion from? Mr Chapman (counsel for the petitioners) pounded this into the magistrate. lie said : " What was required to void an election was thai the tendency, and not the effect, had to shown. There were some classes of acts as to which it would be impossible to show the ultimate effect. lie submitted that the Legislature selected with deliberation the expression 'tended defeat the fairness of ion. and that that enabled the magistrate to void the result of the poll if he found that the complained of had that tendency, without his being obliged to find they had that effect." [f Mr Chapman had seriously brought this
22
A TRIAL IN A VACUUM
nonsense judge of the Supreme Court, the judge would have advised hi- examination by two medical men. Shorn of its sophistry, what do.- it mean? That if something happens in a vacuum, somebody has got to be hanged' A tendency is a balanced force -and we are surrounded with myriads ot them. physical, moral, and spiritual lone- oi gravity, pulling and straining and balancing our world and its contents; forces of good and fori- of evil tending in contrary directions; forces of men tending in contrary directions;- but no one in his senses treat- a - a lib. rated force.
Now let us examine the magistrate's language. He says that an •election is voided for a class of practice which may have a tendency to, “ but, as a matter of fact, really does not, affect the result! We are asked.-as Mr Chapman says, to believe that the Legislature 1 ■ with deliberation has selected its words, and that if the trate finds any tendencies—that is, forces at work—in the conduct of an election that, though unfair, yet do not affect the result, he is to void the election, and to inflict the capital sentence on the whole electors. This is simply incredible. Let us strip the fallacy by examining the words in detail. There are two expressions used by the magistrate that will let us see where the fallacy got in. He says that by the common law of parliamentary elections only such irregularities count as “ affect the result ; but here he has only to find irregularities that “ defeat the fairness of the election ; and he holds that these two things are different, though it is as ■clear as can be that they are one and the same. When is the fairness of an election defeated? Evidently only when Brown is elected when Jones should have been. If Jones has the majority of votes, yet if Brown is elected, evidently the fairness of the election is defeated. Only when the wrong party gets in, or the wrong issue is carried, is the fairness of the election defeated. That Brown’s votes or Jones’s votes might have been more or fewer is of no consequence to the ultimate fairness of the election, if, in point of fact, a few votes more or less did not affect the figures to the extent of placing the wrong man in and the right man out. That is the only “ result ” the Legislature cares two straws about when it speaks of “ defeating the fairness " or “ affecting the result.” Now, if after allowance for all irregularities it is found that the “ result ” would not have been other than it is, then no man will contend that the Legislature would void an election for anything less than what would affect the ultimate result. And (he magistrate declares in explicit words that none of the irregularities “ affected the result ” ; yet he has voided the poll. He says; “As the majority was over 30, 1 do not think the proved cases affected the result.” Surely, then, if the proved cases did not affect the ultimate result, the fairness of the election was not defeated. The two things—when you are dealing with the simple question, “ Who had a bare majority of votes after all allowances and deductions are made?”—-“to defeat the fairness” and to "affect the result,”
23
THE ASHBURTON DECISION
that is. to det'i at the ultimate fairness, and to affect the ultimate result- art one and the same. And if you will read the decision ol lie magistrate who tried the Ashburton petition, you will see thi- nonsensical fallacy never disturbed his judgment. He used the expressions " tended to defeat the fairness of 11 a and " affected the result of the election with preci meaning. Here ive words : " As to the overcrowding, it i- quite evident that though an irregularity was permitted, im< income it in no way affected the resull of tin- election, as no one wa- thereby prevented from voting. . The method adopted i strictly in accordance with tin letter of tie statute, but I cannot see that it would make any difference in the result, or suppose that the result would have been altered had the proper method been used. It may have hi en a mistake, but it did not tend to defeat the fairness of the election. It -ee'ms to me unreasonable to contend that any such rity, without which no election is ever likely to be free, can over-ride tin will of tin- people so unmistakably expressed.'' There you have as clearly a- language can express it that the Ashburton magistrate regards tending to the fairness of the election the same as affecting the result of it.' Not so our magistrate. And once the counsel for ent him wool-gathering for things which, aft it was found did not affect the ultimate result, the decision of the magistrate in their favour was a foregone com fusion.
It is plain the magistrate was misled by the fallacy lurking in the word " tendency, ' which he asks us to believe the Legislature decreed should void an election. That a "tendency to defeat " should be as fatal as "in fact, to defeat. This is incredible. This is to play at elections. It is to ask us to believe that the eli are playing themselves in school at mock elections, and if it, cours lection th should notice anything that tended to di ould " have it all over again,' even although the ultimate result was not affected. We have heard of grandmotherly legislation; but playing at and making them void becausi of irregulai ,d tendency, but, in fact, are counteracted in the ultimate result, is to reduce a grave public ion and the electors of the colony to factor- in a " Comedy of Errors." Xmv. what is meant by a "tendency ' : T would respectfully invite the magistrate's attention to any text-book of I. say to "Mill's Logic, Book 111., chap 10, "Of the Plurality of Causes, and of the Intermixture of Effects" ;to "Whafely's Logic" : Appendix. "Ambiguous Terms"; chap. 28, "On Tendency"; and to ' Jevons hap. .'il : 'Explanation. Tendency, i Us." ; and he will admit that if he can quote "authorities," so also can I. Let me endeavour to explain what is really meant by "tendency," and you will at once see how reasonable i- this Mib-eL. id. if you will examine the context, how consistent it is with the preceding clauses in the 1., ion- Act, and how. as might be expected, it i- an expression of a principle of equitv and pi
24
A I OUNTKRACTED CAITS]
instead of being, at the instigation of our opponents counsel, a ; yin the hands oi a magistrate. W, are dealing with tendencies or causes or forces and their effects. Now, it i well known that in nature, as in an election, any effect may hav< might be more than one ading to affect unfairly the ultimate result oi an election that the word "tendency ("a contributing influence, tin I tury says) is used. How, for instance, to take an illustration from nature, ar the trad, winds accounted fori Not by one cause; but by a plurality of causes, which tend to produc< one effect. And ,f an election may be altered by a plurality or contributing influences, which affect the ■ lit which, taken singly, might not have that r e vons -ay i sample 1 have taken : " There is one law or ti ndency which causes winds to blow from the Arctn regions toward- the equator, and a second tendency which caus .: blow from east to west. Th se tendencies are com- :. and cause the trade wind- to blow from th. northin tin Northern Hemisphere, and from the south-east in the hern Ilemi-pln r< Again, he says : ■-" If the joint and lionioous action of causes arly explained, it will be now r that a tendency mean- a causa which will produce an effect tere be opposite cause-, which, in combination with it. count iet and disguise thai effect. Thus, when we throw a stone into p.. attractive power of the earth tends to make it fall, but the upward motion we have impressed upon it disguises the tit for a certain time. And Jevons concludes: "A tendency. Be which may or may not be counteracted." Now. tin wholi question for the magistrate resolved itself into this: Granted the irregularities, inseparable from every election, and tending to unfairly affect the ultimate result, were these irregularities and tendencies counteracted in that ultimate result ! Plainly, a cause, hurtful in iiself. if counteracted, is rendered harmless; and there are thousands of such tendencies abroad that are so counteracted. But neither law nor reason could treat a cause or force counteracted, and bo rendered innocuous, as if. in fact, it was liberated to its full effect. The tendency of the careless discharge of firearms is to wound or kill, and the careless discharge of firearms in a public place is punishable. But it would be absurd if tin law punished a man for murder or culpable homicide, when, in point of fact, the tendency, in a particular case, was counteracted—and the bullet entered the ground or buried itself in a wall. In fact, nobody wa- hit. the tendency was counteracted, and other fortunate circumstances altered the ultimate result. You see. then, that a tendency is a •cause that may or may not be counteracted. Now. in the particular cases the magistrate groups under this subsection, he says that the tendency to defeat the fairness of the election was. in fact, counteracted, and did not appear in tin ultimate result. He says: "I do not think the proved cases affected the result." That is to say. the tendencies to unfairness were counteracted by the tendencies to
THE LOGIC OF LEARNED COUNSEI
22
, and did inn appear in the ultimate result, whereby no,l. representing the will of 1 Yet the magistrate, at the instance of " leaned counsel, tn d tin :l a vacuum, and without regard to reason or common It was a favourite dictum of Lord Chancellor Eldon that a thin- -hould be clothed with its circumstai and if the magistrate had clothed this tendency to unfaimos- with tl that, in the ultimate result, it v n1 racted n would have seen he was upsetting our election for a figment oi the imagination These, then, are the grounds on which our . is voided The legal figment oi stricl time, and the logical figment ither of which affected the result one jot And. if only the magistrate had exhibited the same courage and consistency in dealing with the Brine election a- with tin Mataura. his decision would have been in the exact words of the Ashburton magistral i, who used the words I have already quoted: " It ,o me unreasonable to contend that any irregularity, without which no election is ever likely to be free, can ever over-ride the will oi the people so unmistakably expressed.
I have not. however, done full justice to the electors of Bruce if I do not now examine this same magistrate's decision at Mataura. How lie upheld Mataura and voided Bruce no reasonable mind can fully understand. The irregularities at Mataura were greater than those in Bruce, and yet he dismissed the former petition with decision and courage. I think possibly the reason is, that the powerful bar engaged in Bruce pounded so many legal technicalities, quibbles, and sophistries into him that he got misled for the moment by bis adoption of the fallacy I have exposed. Be that as it may. tht decisions are not consists nt with i ach other. Take the irregularities m Mataura under "strict time" alone, and you will see they were much more serious and pronounced than those in Bniiv. At Gore the poll was not open till a-quarter past nine. Vet. how does th magistrate reason? He admits the " main door was shut at 9. when Mr Bovne told the officials inside, 24 in number, to vote. This wa~ done, and the main door was immediately again opened at 9.1> a.m. to the public. There was also a side door open all the time 1 am satisfied polling commenced at 9 a.m. here, and t,o have allow d the general public in until the officials had voted would have caused a block. I therefore hold strict time was kept at Gore.' Now, if the magistrate had applied the same principles at Mataura that In applied in Bruce, I fail to see how " strict time " was kipt at Gore. He says the main door was locked; the public were excluded, but that, as the "officials" were voting, this kept open the poll. But wlun did Parliament appoint a time for " officials to vote, and give them the privilege of barring out the " general public " for tinfirst 15 minutes of the poll.' Parliament expects every booth to accommodate, in addition to the officials, at least six of the public: and provides that officials shall vote, not as officials, but as members of the general public, in an open booth. And if any elector that
THE MATAURA JUDGMENT
morning bad appeared a 1 the poll to vote al nine befon catchii nam he would have been prevented from doing so. Certainly, ll the "strict time" limit applied in Bruce had been applied in Mat una. it puzzles me to see how the former poll is void and the latter upheld. Again, at Hedgehope a more glaring irregularity red than any in Bruce. Here the electoral officer was late 20 minutes, and he had the official seal ; but " with the electoral officer's pranks," the magistrate says, "he had nothing to do. No, certainly; but he had to do with this fact: that "where the machinery was wanting, there could be no poll " ; and the licensing officer could not give out. and probably would have refused to give out. any voting papers without the official seal. So far as he was concerned, the seal might have been at the bottom of the sea for 20 minutes ; and. a, the act. section 7 (f), provides that " the returning officer shall cause the voting paper for the licensing poll to be marked in the same manner as the ballot paper, and shall give the voting paper and the ballot paper simultaneously to the voter, it was manifestlv impossible lor him to do so. And if the magistrate had acted' " like an automaton in Mataura. as he did in Bruce, he would have held that strut time was not kept at Hedgehope, and have voided the election. Again, at YVaikawa Valley. :t is equallv impossible to reconcile the magistrate's decision in Bruce with his decision m Mataura. Here a private residence was gazetted as a polling place. " The actual voting took place in the front room, which opened off the hall. The hall or front door was open all day. At lunch time and tea time all the officials left the front room, locked it. and retired for. say, 20 minutes into the adjoining room, where thev had a meal. A voter who called during this interval of refreshment was given a meal before they all returned into the voting room, when he voted.'' Mow, clearly the booth—that is, " the room where the actual voting took place " —was closed here for at least 40 minutes that day ; and a voter who called to vo;o was absorbed, so to speak, by the officials, while they had " locked " the booth and were absent from it. I think anyone will admit that the elements of irregularity here were in a high degree more reprehensible than any in Bruce, and yet, although none of our booths were "iocked " in the face of any voter, our poll is void, and Mataura is upheld. On the principle that where an irregularity did not affect the result one jot an election should stand, then nothing occurred, either in Mataura or in Bruce, to void the poll ; but the reasoning by which the magistrate constructed a legal figment into an offence in Bruce is conspicuouslv wanting from his reasoning in his Mataura decision.
I think it must be evident to the electors of Bruce that on very flimsy evidence and precarious reasoning they have been robbed of their rights and their will rendered void at the polls. Moreover, apart altogether from the evidence itself, there was good reason for the magistrate to look on the whole petition with the gravest suspicion as a transparent attempt on the part of a few electors to get
23
THE REWARD OF VIRTUE.
27
behind the polls and defeat, by legal technicalities, the will of the electors lawfully declared. Indeed, it is questionable whether there bag been a more flagrant attempt lo defeat the will of the people Inlegal technicalities ainci the ■■ to the Reform Bill, a hundred years ago, in Old England. You would think that the clock in one night had been turned back a century, and all the struggl the Charti-t- and reformers were a thing of nought. For what do we find m the present instance? The petitioners to void the poll were parties, by their officially-appointed scrutineers, to all the offences they complain of. What do you think of a man who a into court with a grievance, and seek- judgm d bis fellowelectors for an irregularity which be took no mean- to prevent. which he connived at. condoned, or even perpetrated himself.' For. in the ease of the violations of secrecy of the poll on the part of the voters, what evidence was there to -how that it was committed by the no-license voter-, and not by the complainants themselves? And. while the magistrate remembered this fact in Mataura, he entirely forgot it as a factor in his Bruce decision. In his Mataura decision he says: "Those witnesses, chiefly botelkeepers and licensing scrutineers, who testified about the defective arrangement-, did not complain to the deputy-returning officer at the time, and made no sugon of improvement. Now. this i- precisely the position in Bruce; and it is most exasperating to temperance reformers, who have been carrying on this battle for years, to have the victory, fairly and honourably won, -Hatched from them by methods that belong to to the dark ages, a hundred year- ago. of parliamentary warfare in England. To such a pass have we com< in this ColonV that boasts itself as in tin van of the world's progress. I say, then, our position has only to be brought clearly before the people and Parliament of this Colony to have this wrong rectified. It is incredible that a proud and free people have degenerated to the level of a South American Republic, where one oligarchy give- place to another, bul the people never rule. Tin law i- no stronger than its weakest link ; and. let it be borne in mind by elector- everywhere, that, the power of the people of New Zealand is no stronger than the power of the electors of Bruce. There is no free poll in Bruce for nearly -1000 elector-, who. by the decisions of the law courts, are robbed of right-, which 1 will not -ay Parliament has conferred on them, but of which Parliament i- the guardian.
Now, what are the electors of Bruce going to do! Thev are going to stand by the poll. Some have talked of a fresh election ; but that is not the road to victory, but to a fresh defeat. Some have dug a section out of the old Licensing Act, by which, in certain circumstances, provision appears to be made for a fresh poll. But a fresh poll cannot be taken in the same circumstances. You cannot make a fresh parliamentary election; hence it is impossible to have a fresh election on the same condition-, with onlv alleged irregularities eliminated. You cannot guarantee that vour poll will not be void by the absence of half the voters on the roll. You.
THK ROAD TO VICTORY
in short, cannot repeat the condition . and a fresh election is jusi a further attempt to trample on the rights of the people by using the forms of populai government to deprive them perpetually ol power. Again, it is said that, by another section, ii may bi declared that Bruce electoral has undei boundary changes and that after all it i- not the electorate of Bruce, and our ultimate success hinges on this technicality. That is unless Parliament meantime valid poll. Aft ision« that have come from the law courts heretofore, I shall be surp at nothing in future, even though it should be decided that Bruci is in Taieri or in Turkey. But let our opponents wring what decisions they may from the courts, thev will iind that, until Parliament has reviewed the situation and decided whethei the people are to Inrobbed of their liberties by legal figments and legal technicalities, no more such decisions will affect the determination of the people of Bruce. They will stand by their poll, as they stand by their ancient liberties and birthrights, and demand that no licenses be granted in Bruce until by lawful vote at a parliamentary election thev reverse their previous decision And before that is di nearly one thousand voters will have to go over to our opponents. I believe that the action of our opponents in.going behind the polls will bring to our side more than one thousand electors that have hitherto voted against us. We therefore intend to elect a Licensing Committee wdio. meanwhile, in terms of section 3 of tin Alcoholic Liquors Sale Control Act, will grant no new licenses or renew old ones until a fresh mandate, reversing the previous decision, is arrived at by the electors of Bruce. That reversal, T believe, will never come. The future is on the side of the T< mperance reformers of X'w Zealand, and the Liquor party cannot fight against the future any more than they can against the rising sun. Though our fortunes are at their lowest ebb in tlii- reverse, vet I believe Mr Cruickshank has done the greatest service that has ever been done by the courts of Xew Zealand to the Abolition cause. By strict adherence to " law." he has reduced it to an absurdity. He has called pointed attention to the state of the law, to the mass of legal technicalities, decisions, and figment- that stand in our way, and how, while enjoying the forms of popular election, a minoritv can perpetually thwart and defeat the will of the overwhelming majority of the people, and deprive them in the law courts of every victory that thev win at the polls.
We must then go to Parliament. Parliament and the people of the colony have got an object lesson that they will not soon forget. W< have given our opponents every advantage. Though the Abolitionists are a majority of the electors, they have said :"\Vc will not force this reform until in every electorate it is carried by 5 to 3. That ought to satisfy even our opponents ; and Parliament. I am convinced, will not tolerate a state of things one day, by which a minority of 3 to 5, beaten at the polls, are able to wrest victory from the law courts. Law courts—at least, in the Old Land—have
20
26
CONCLUSION
been notoriously conservative in their judgmi nts in favour of popular rights; hiu the day is past when the courts can. even if they should wish, long withstand the will of an overwhelming majority of the people. Parliament is higher than the courts, in the sense that it i- the final interpreter of it- own intentions and statutes, and can make these statutes express the mind of the people. The people. in short. have their intentions expressed by Parliament. And to Parliament we make our appeal No doubt strenuous efforts will be made to defeat us our victory now will be the herald of victory next election in half the electorates of Ni w Zealand. But no more trials of this kind will be repeated. The farce of conducting an election according to the provisions of out' Ait. and trying a petition to void that election according to the inconsistent provisions of another, thanks to Mr Cruickshank, will not be repeated. And if Parliament which T will not believe- is responsible for sending the Electoral Act to every booth in the colony to guide licensing returning officers, when it meant to send the Local or Road Board Act. then. 1 say. Parliament will hasten to undo the wrong inflicted on the electors of Bruce, and will validate their poll. I believe in this demand I voice the mind of the 4000 electors of Bruce, as will be seen when the petition of the electors of Bruce is presented to Parliament. And hundreds of thousands of electors throughout the Colony, when they really understand our position, will be of one mind in demanding for the future a poll free of legal technicalities and figments a free poll for a free people. I beg to move the following motion :—' This meeting of the electors of Bruce protests against the voiding of the licensing election by the magistrate on unsubstantial and purelv technical grounds, and resolves to petition Parliament, at the earliest opportunity, to validate the poll. a.s the magistrate, who conducted the recount and held the inquiry, has declared that the required majority of three-fifths unmistakably expressed the will of the electors of Bruce, and that the irregularities and technicalities did not affect the result. The electors of Bruce pledge themselves to resist every attempt of a minority to get behind the polls, and to demand a free poll for a free people. And that copies of this resolution be sent to the Right Hon. the Premier and to the Honourable Member for Bruce."
Mr Fraser resumed his seal amidst loud applause, the address, which was frequently applauded, having occupied nearly two hours in delivery.
Mr P. M'Skimming, in seconding the resolution, made a strong appeal to the electors to return the Temperance candidates at the licensing election.
Tin resolution was adopted unanimously by large and enthusiastic audiences at Milton, Kaitangata, Stirling, and Waitaluma. the renin- of the electorate, March 20-26, 1903
APPENDIX I.
THE LOCAL OPTION POLL.
(Daily Times, March 25, 1903.)
The Rev. P. B. Fraser was treading on somewhat thin ice when in the course of tin- vigorous and able speech he delivered at Milton on Monday evening, he combated the conclusions which Mr Cruick shank, S.M.. had formed upon the evidence that was laid befor. him at the recent inquiry concerning the validity of the Bruce local option poll. Tin- magistrate, whose integrity was in no way impugned by him, " took an unreasonably narrow view of the law.' Lis judgnunt was "inconsistent with his judgment in the Mataura ease, and also inconsistent with itself," he "bungled a bad law,' and his mind "appeared to have been completely obfuscated' bv the "sophistical reasoning and nonsense" which counsel for the petitioner " pounded " into him. There is, it will be acknowledged, a delightful freshness and frankness about the way in which Mr Fraser expresses his opinion of the magistrate's judgment. But it is m good company that Mr Cruickshank suffers the sting of the biting criticism that is applied to his decision. Mr Justice Williams, by hi- ruling in the case three vears ago, which decided that the inquiry into a petition impeaching the validity of a local option poll should be conducted under the provisions of the Regulation of Local Elections Act. has also come within the range of Mr Fraser s oratorical artillery. His Honor, we are assured by this authority, not only nodded over the case in question but went " clean asleep." and the product of his slumbers has been " a mass of inconsistencies, legal quibbles, sophistries, and heartbreaks." This is undoubtedly very pretty rhetoric, and it will, it may be assumed, be appreciated a- such by the Bruce electors : but it does not seem to have occurred to Mr .Fraser, or if it did he does not seem to have made sufficient allowance for the fact, that the judge and the magistrate had both to administer the law as they found it. The law may be, as it is. full of inconsistencies, but that is the fault of tinLegislature, the body representative of the people, and not the fault of the Beach. Mr Fraser forgets, moreover, that the decision of Mr Justice Williams, which he regards as "the source of all their troubles." was. unlike Mr Cruickshank's finding on the petition challenging the validity of the local option poll, subject to review. And the fact that it stands to this day as the authoritative state ment of the law concerning the procedure to be followed in the case of a contention regarding the validity of a poll should suggest to him the possibility that the view Mr Justice Williams took in arriving at his judgment has obtained the substantial concurrence of the lawyers of the country. A layman's knowledge of the law and of the principles to be applied in the interpretation of statutes is not usually to be preferred to that of a trained lawyer, and Mr
28
HE TIMES APOLOGISES FOR THE “LAW.”
a abundant display oi quality of which on oi a di Supreme Court I ,„„ an d ~ ~ mucn for his conspicuous pel 01 hi eolute impartiality. Mr Fraser would apparently have tin inquiry i the law provides, in term- of ' Tie I n "of Loca ns Act. and the matter in d the poll had been il poll. It is one oi the most sui p i, that any oth But it daps not so absurd as hi ould be. "To enact that an inquiry should b, nder one ■ ions and that th on principles altogether i it with those expressed in the sections under which the inquiry is to i absurdity." These word- by Mr Justic William- in the decision with which Mr Fraser finds fault. Possibly Mi Fraser may. when lie ha- been able to look more closely into the qn | hat even his interpretation of thi law is not unas Mr Fraser is on firm ground. I lien he d hat the will of the people as expressed at thi local o] tion poll ■I. A-e
APPENDIX II
A REPLY TO LEADING ARTICLE IN OTAGO DAILY TIMES (March 25).
“LAW" IN BRUCE.
TO THE EDITOR.
Sir, -I am rather pleased than otherwise that you make the long range of the judge's gun an admirable covi r for the magistrate. That Mr Cruickshank was bound bv the ruling of Judge Williams I have made abundantly clear to the electors, and relieved the magistrate of a deal of unmerited odium in consequence. That. however, you should represent me as ridiculing a distinguished judge'' is just one of those misrepresentations I may expect. It is much easier to do that than either to show the reason for the judge's ruling, or to demonstrate the weakness of my criticism, and people who have made no study of the question will be satisfied that you are right. Bui the fact is the judge'- ruling is what no ordinary mortal can understand, and I haven l met a lawyer who can understand it either. That it is the "law' does not make it -liable: and that il has not been appealed against does not provi it unassailable. The decision was given thri _:o in Bastings v. Stratford, and as the Bruce people had nothing to gain, not having got the required three-fifths, they did not Ml tliev were called on to face further costly litigation in the Court of Appeal.
1 APOLOGISE FOR THE PEOPLE.
29
u they had as big a treasury as their opponents to draw on it would have been taken to appeal long ago. Then, as to the question whether the judge's decision is consistent with “ law,'' that is a purely secondary question for the electors of Bruce. What we are concerned with is with the state of the law, and how our opponents, beaten by overwhelming majorities at the election, are able to wrest decisions from the law courts which render nugatory the verdict of the people at the polls. Further, the electors of Bruce are concerned with their inalienable rights, and are not to be deterred from criticism of the judgments of the law courts when the effect of such judgments is to reduce them to bondage. The merits of the case will only be fully known when the argument is duly presented, and the electors of Bruce are making arrangements to have their case fully put before the colony as it was presented in the address you refer to.
Meanwhile I will just quote your sentence from Judge Williams : To enact that an inquiry should be held under one set) of sections and that the decision should be given on principles altogether inconsistent with those expressed in the sections under which the inquiry is to be held would be an absurdity.” Now, kindly substitute the word ‘ poll” for inquiry in the above sentence and see how it reads : ‘To enact that a poll should be held under one set of sections and that the decision ” [as to the validity of that poll] “ should be given on principles altogether inconsistent with those expressed in the sections under which the poll is to be held would be an absurdity. If Judge Williams has got the magistrate out of the absurdity, it is only by casting the returning officers and electors of Bruce into it headlong. It is the effects of that “ absurdity we now bear the brant of. In conclusion, let me draw your attention to a significant sentence in the Chief Justice’s decision mre the Newtown appeal. He says: “The words ‘electoral poll' might, as was held in Bastings v. Stratford, refer to a local electoral poll, but, even if they referred to an ‘electoral poll’ under the Electoral Act, the subsection did not confer on a magistrate th" jurisdiction of an electoral court.” The significant word “ might ’ would appear to indicate a very marked neutrality in the mind of the Chief Justice. But, be that as it may, we have found out that this is “ law,” As nobody pretends that the Legislature could ever have meant either of the above “absurdities,” it is clear we are proceeding on the right lines to know whether it is the Legislature or the law courts that have reduced the electors of Bruce to a state of impotence and bondage that would disgrace a province in Turkey in order that Legislature or law courts may remove the barriers to our freedom which their inadvertence or mistake has created 1 am. etc.,
P. B. FRASER
Lovell's Flat, March 25.
30
nii: people's verdict.
AI'I'KXDIX 111
RESULT OF BRUCE LICENSING COMMITTEE ELECTION, MARCH 30, 1903.
No License Candidates Elected
Moderate Candidates Defeated
Rev. P. B. Fraser 1797
J. Tough 1183
A. Dunlop 1797
W. Noble 1173
P. M'Skimming 1795
Dr J. Fitzgerald 1172
James Adam 17 i 6
J. C. Anderson 1161
Henry H. Frazer 1762
R. Craig 1158
The Daily Times report say-: -In March. L9OO, with two small returns "to come, which could not alter the result the voting James Adam. 821; James Inglis. 809; Robert M'Kinnon. 766; H. H. Frazcr. 750; and Hugh Russell. 631. This was a win for the No-license party. It will be seen that the interest in the el ction of a committee has largely increased when Mr Adams total of 821 is placed against the Rev. Mr Fraser's or Mr Dunlop's total of 1797. The voting three years ago was also much tic candidate lowest on the list polling 582, without tin twi returns not to hand. It will be found that, addii for the Temperance party thi- time, the total i- 5'.:27. the total for their opponents being 5850; and the average for each candidate for each side would be: Temperance, 1785; Moderate. 1170. Reckoned in this way the Temperance candidate- hid an individual majority of 615 vote-, and a collective majority of 3n7 7
The Bruce Herald says: The result of the poll for the Bruce Licensing Committee did not com< as a surprise to many pie in Bruce, as it was a foregone conclusion that the No-li ticket must head the poll. At the same time, although this was genera] opinion, even bi ton the poll took placi fi w could have imagined that the victory wouli overwhelming as it ut. At the election in 1900 the total vi d was only i 1500, whereas, on the present occasion, 2891 valid led their votes. The highest total individual recorded vote (Mr i was 1797, and thi lowest on th was 1762, i; will therefore In- seen that the N i a three-fifths majority oi the total number of valid vot< led. There is no doubt the No-license party won a splendid iv. and they can prid< themselves on the fact that tie.. Ed probably five of the most representative men to he found in Bruce
31
THE PEOPLE'S PETITION
\i'i"i:M)i\ in
PETITION OF BRUCE ELECTORS TO PARLIAMENT TO VALIDATE THE LICENSING POLL.
Unto the Honourable the .Member- ot the House of Representatives of New Zealand in Parliament assembled.
The petition of the undersigned elector- oi Bruce humbly iheweth :
1. That a Licensing Poll, in terms of The Alcoholic Liquors Sale Control Act. 1895," wa- taken in the electorate of Bruce on same day as the General Election. 25th November, 1902. O Tl. - .. .1. . - l ,i ... . . „
2. That the said poll was conducted by the returning officer and elector- in the manner set forth in the said Act for taking the Licensing Poll.
3. That the proposal, that no licenses be granted or renewed in the electorate, was declared by the returning officer carried by the required three-fifths majority of the electors.
4. That on a recount of tin votes by the Stipendiary Magistrate, in terms of tiie law. the numbers for the various proposals were declared as follows:—Voters, 3901; Continuance. 1525; Reduction. 2157 ; No-license, 2372 ; showing a majority of 31 over the required three-fifths of the elector.-, and an actual majority of 847 of the electors for No-license as against Continuance.
->- That a petition by a defeated minority of the electors to declare the election void on the ground of alleged irregulariti mitted in the conduct of it. was lodged in the' Court of the - diary Magistrate and tried by him.
6. That the said magistrate "reluctantly" declared the election null and void on the ground that "strict time was not kept at certain booths, and that certain irregularities tending in the magistrate - opinion, to defeat the fan.,, ss of the election were permitted at other-
7. That the magistrate found that, all the irregularities notwithstanding, the ultimate result of the election was not affected thereby, his words being: "As the majority was over 30 1 do not think the proved cases affected the result."
8. That the decision of the magistrate in voiding the election for irregularities that did not affect the result, was based on the principle that the Licensing Poll shou been condu, as°, q £ 0 * Po "' in termB of The Relation of Local Elections Act. Jc/b.
9. That -The Alcoholic Liquors Sale Control Ad 1895" in terms of which the poll was held, declares, section 7 (I a)- '''The returning officer of the electoral districl shall, upon the dav an r"; 1 dto take the Lice, P in the manner provided b\ the Electoral Aei for taking the electoral poll.''
10. That section 7 (o) of the same acl If fch e result of any licensing poll is disputed, an ore may requir,
12
I UK l'l
to be held in in.inner pri d the -übsequent of "The Regulation of Lotions An. 1876, and the matter in dispute dial! be determined in the same manner, mutatis mutandis, as n the -aid poll were an electoral poll.''
11. That, the abo ins not with,landing, the magistrate the matter in dispute as if the said Licensing Poll were a Road Hoard poll " taken in term, of The Regulation of Local Election, Ait. 1876.
12. That the said Regulation of Local Election- Act. 1876," i ■ returning officer to guide him m the conduct of the Licensing Poll.
13. That tli!' returning nd a single copv oi "The Regulation of Local Elections Act. to anv booth in the electorate to guide the deputy-returning officers or the electors in the conduct of the election.
14. That in consequence of the said decision of the magistrate. based on principles governing the conduct of a road board poll in the Regulation of Local Election, Act. the whole electors of Bruce have been deprived of their lawful power at the poll, and their unmistakably expressed will declared null and void.
15. That in terms of section 57 of the Regulation of Loci' Elections Act. there is no appeal from the decision of the magis tratc.
16. That the law doc not provide for a fresh poll of the elector; under the same condition, as those under which the election which was declared void was held.
17. That a fresh election is not required either in law or equity to determine the will of the elector,, as. in the opinion of the magisilie result of the election would not have been other than it,
18. That a fresh election, which could not be held under the same conditions as those under which the election which was declared void was held, and simultaneously with a parliamentary election. would not be just to the elector, of Bruce, and would, in the circumstances sel forth, be without precedent in the conduct of elections on national questions.
Now. therefore, the undersigned electors of Bruce humb pray that your Honourable House, in view of the premises aboset forth, will be pleased to validate the said Licensing Poll. And your petitioners will every pray.
APPENDIX V
His Honour the Chief Justice.
Wellington, March 21
In the course of bearing argument re Port Chalmers poll in Court of Appeal, the Chief Justice is reported in Otago Dailv T to have spoken as follows:
33
THE DECISION AT BRUCE
"The Chief .Is narked that it was perfectly plain the Regulation of Local El' is not a suitable " deal with these qui I all. But the Legislature hail chosen y it was, and tlu\ iut of it. One had only to look ai the Act to see that, even as applicable to County Council elections, r. from being complete. The wl required revision by the Legislature—there was no doubt, about that,'
A.PPENDIX VI
THE MAGISTRATES DECISION AT BRUCE.
Yesterday morning, March 11, 190;;. .Mi- Gr. Cruickshank S.M., sat in the Chambers Room at the Supreme Court to give his decision in the Bruce licensing poll inquiry. Messrs F. R. Chapman. W. A. Sim. and D. Reid (instructed by Mr X. Paterson and Mis~ Benjamin) appeared in support of the petition to upset the election, and the Temperance part\- were represented by Messrs A. S. Adams and J. F Woodhouse.
t . \\ uuuuouse. His Worship said he had intended to go to Milton to deliver hi» ;udgment. but. to suit the convenience of the parties, he had arranged to give it in Dunedin. He would, however, be passing through Milton on the following day. and would then enter up records.
Mr Chapman: So that the actual • ntering up of the judgment will be in the district to-morro\v !
His Worship: Yes. In a highly technical matter such as this, it is as well to comply with the regular procedure. My judgment is as follows:
This is an inquiry held under section 48 of "The Regulation of Local Elections Act, 1876,'' to test the worth of the allegations in a petition of Brace electors praying that the local option poll recently taken in the Bruce electorate may be declared void upon the ground of various irregularities in,the conduct of the election. In considering the law and facts laid before me at this inquiry I have never been without a deep sense of my responsibility in this matter, having before me the words of Mr Justice Barrv when giving judgment in the Drogheda petition in 1874. He said : "That able and experienced judge. Baron Martin, in giving judgment, said, 'I adhere to what Mr Justice Wiles said at Lichfield, that a judge, to upset an election, ought to be satisfied beyond all doubt that an election is void, and that the return of a member is a serious matter and is not to be lightly set aside ; and the rule laid down by that eminent judge seems to be consonant with justice and common'sense, and to be one of general application.''
The law under which this petition is to be tried is contained in section 50 of the Regulation of Local Elections Act. Subsection
THE DECISION AT ISRUCE
37
2 says li upon iny such inquiry it appi ars that the poll was open beyond or was not open within the hours hereby required, the whole election shall be void. And subsection I If upon anv such inquiry it appears that any other irregularity occurred in the proceedings which, in the opinion of the , U nded to defeat the fairni ion. the whole election shall be void.
All the allegations in the petition come under one or other of ther under subsection 2. which is - about the opening and closing time, or subsection 6, which deals with which tended to defeat the fairness of the election. I will deal with each class in turn, taking first the evidence given about the hours kept at the booths.
Time. The provision as to the hours of polling is plain and mandatory. The court in this matter is somewhat like an automaton, and once it is clearly proved beyond all manner of doubt by admisor thoroughly reliable evidence that the poll—that is, the operation or opportunity of voting—was closed at anv one polling place in the district for any really appreciable length of time before or after the statutory hours. 9 to G. the court has no option but bv mere weight of the statutory machinery to declare the election void. This being the law. let us take the individual instances wherein evidence was led alleging want of punctuality. Without going into the evidence here. I will say shortly that I hold it is not proved that strict time was not kept at Milton or Akatore Beach. The first case which calls for inquiry is that of Manuka Creek. The deputvrc turning officer for the electoral poll opened his box. according to his own story at 5.45 p.m. The deputy-returning officer for the licensing poll says that the electoral box was opened at 10 minutes to 6. He savs they counted this together, and then the licensing box was opened and counted. As there were onlv 53 votes altogether, the counting would not take many minutes. Although the two officers, who are the only witnesses on this subject, differ in then account of the time, it is certain that giving the most favourable construction to the evidence for the defence, thi re must have been a premature closing of the booth. I hold, therefore, that strict time wa- not kept at Manuka Creek.
The next case which calls for serious consideration is that of the Berwick polling booth. Here the returning officer appointed to take the licensing poll left the booth altogether for what he calls "15 minutes at least." What is the effect of this' Clearly, it is a closing of the licensing poll for that period, as there can be no poll without a returning officer. The second question, however. arises: Did he leave a substitute to act for him? He says he left the electoral returning officer in charge. Section 112 of the Electoral Act permits the appointment of a substitute in ease of illness or other sufficient cause. Now. here there was no appointment in writing; it i- questionable if there was anv verbal appointment substitute. Tin cause of absence was purely private business—viz.. to vote m another electorate. This js not a "sufficient cause
HI DECISION AT Bl
35
within the meaning of the section. Again, the electoral officer cannot act as deputy-returning' officer for the licensing poll, as the it that there musl be two deputies. The deputy-returning officer for the Licensing poll is appointed for the "sole purpoattending to th< business of taking the licensing poll." Again, the deputy-returning officer, being in one of his functions, at least an officer whose duties are judicial, he cannot by a common law delegate his functions to a substitute. If the statute i- not complied with substitute has no power. There was therefore at this polling booth for the licensing poll neither substitute nor returning officer either de facto or de jure, and the poll was thus closed for 15 minutes. This quarter of an hour is too long to be overlooked, and is enough to constitute a substantia] breach of the act.
There remains the case of the Waitahuna Gullv polling place. The evidence of both sides agrees in the main, and shows that the poll was definitely and intentionally closed by locking the door and opening the ballot boxes at about four minutes to 6. Within two or three minutes of such closing the door was unlocked to admit a belated voter, who claimed it was still not quite 6 o'clock. The vote was taken, and the door once more locked. There was thus a clear and distinct breach of the subsection. If this had been the onlv breach. I might have tried to waive it, using the discretion given by the maxim De minimis non curat lex.
There are thus three distinct breaches of the second subsection. By the common law of elections these instances of premature closing would not avoid the election unless the result was shown to be affected : but here I am acting under a much stricter law. I will next take the cases coming under the sixth subsection—that is, instances of irregularities which tended to defeat the fairness of the election. By the common law an election was avoided if the irregularities proved were such as to affect the result of the election, but it is clear that a certain practice may be unfair in its tendency without, as a matter of fact, really affecting the result of the poll, and it is this class of practice which comes under the sixth subsection.
To take the individual irregularities
1. There was evidence given of nine instances where one onlv of the two returning officers assisted old or illiterate voters without the presence of the scrutineers at both the electoral and licensing polls. This did not affi ct the fairness, as I cannot doubt the impartiality of or impute bias to the returning officers without positive proof.
2. The returning officer at Waitahuna refused to count four votes lawfully given, owing to the Xo-license scrutineer challenging the voters. As the voters answered all the statutory questions, it was his bounden duty to count these four votes. If this had happened prior to last year it would be unfair, but I think the recount permitted and held under last year's act was meant to cure this
36
THE DECISION AT BRUCE
kind of unfairness, and it has, 111 fact, done -0. I hold, thi this does not tend to defeat the fairness of the election. 3. Considerable evidence was given of three voter- who wendenied the privilege of voting by the returning officer, bn each instance either the identical name was not on the roll or someone of the same name had already voted. I fail to see how either party can claim these votes, and so there i- no unfaini 4. A man named Boy Pearson came into the Aaktore Beach booth near closing time, and stayed with the officer., after the poll was closed, and was present when the votes were counted. A, there were only 21 votes taken there all day. the papers might be carefully handled and scrutinised and the secrecy of the ballot endangered by the presence of an outsider not sworn to secrecy. It was a distinct breach of the act. being a violation of section 129. and was very improper. Still. Ido not feel disposed to say that anything happened that gave either party an advantage in this instam I hold it did not defeat the fail 1
■>. Evidence was given showing that for a great part of clectioi day Messrs Scott-Allan. Blaikic. Weston, and a Salvation Armofficer were inside the passage leading from the front door of th' schoolhouse to the polling room at Kaitangata. One voter M'Lel land—says he was toid to strike out the top line, but from M'Le] lands tone in the box I should net think he was in anv way in fluenced by these suggestions. As to the fairness of it."l do no suppose the presence of these gentlemen helped their cause in am way; probably did it harm.
"—J . puuwuij UIU It IJctl 111 . 6. The next irregularity is the want of Becrecy alleged in various instances. The fundamental principle of voting by ballot is the secrecy of the system. This is the spirit of the English Ballot Act. and also of all our Electoral Acts, whether for parliamentary, local body, or local option elections. In the Bolton case Mr Justice Mellor said: "There is no doubt that the Legislature when it passed the Ballot Act. did intend that that should be a perfectly secret mode of voting as far as any instrumentality or machinery which it could provide could make it so." And the learned jucVe then went on to show that the Ballot Art visited the violation oAccrecv by a penalty (in New Zealand it is punishable by imprisonment) but the act does not declare in anv way that infringement of sccrecv shall affect the seat. Another judge also said: "I am satisfied there is nothing in the act, however it may affect individuals which can affect the seat," -There is. therefore, nothing in the Electoral Acts whereby individual cases of want of secivcv in voting will affect an election. The only case of such is where the' want of sccrecv is 90 wholesale that large numbers, sufficient to make it uncertain which way an election might have resulted, have, through fear of disclosure refused to record their vote. There is no evidence here of anv fear ol the infringement of the secrecy of the ballot which kept voter. away. Mich as was urged in the Down case (3 O'M. and 11 126) or 111 the Wellington election petition. The evidence .how. that in II
'i'l
IHE DEI ISIO.N VI I
instances voters entered the inner compartment together or otherand completed their voting in company These couples i generally husband and wife, or parent and child, or two intimate friends. The Milburn polling booth had it- innei comparti ( nearly all day. the voting b< ing done on tin back desks of the main room- not a Is In one instani dy Bays sh etna! striking out for hi In anothei I wife of the deputy-return r at Milburn. during the short abesnee of her 1> ■ ]• how to :is privilege. I have to decide the questoin whether thesi breaches of tie of tin ballot tended to d, feat the fain of the election. As the majority was over 30, I do not think the proved cas d the result. I think that in the majority of the - the voters had made up their mind before entering, andneithei mi nor lost votes by the practice. The law. however, expects each voter to vote alone and secretly, free from tuition, oversight. intimidation, suggestion, or parental or marital control. If the stronger-mind lie allowed to vote in couples along with 'heir weaker friends, how can such a procedure be fair, even if it doe- not affect - L think in tin's (lection it- tendency is the fairness of the election.
nci 1 uphold the prayer of the petition and declare the election void. Ido so upon the ground of the poll being Manuka Creek, Berwick, and Waitahuna Gully, and the ; odency of the practice of violat . crecy of the ballot to defeat the fairness of the election. This has been mv opinion since first hearing tin but I have delayed the matte. to n of my conclusions, in order to uphold" if possibh verdict of thi , decision. " If. Baron Pollock. " the lan Legislature is plain and clear, we have not! do with its policy or impolicy, its justice or its injustice, it- being framed according to our vie* right or the contrary—we have nothing to do but obev it and administer it as we find it.''
I therefore i he poll void.
APPENDIX VII.
THE MAGISTRATE'S DECISION AT MATAURA.
GORE, February 19.
Mr Cruickshank, 8.M., to-day delivered his deferred "judgment as follows on the petition praying that the recent local option vote by which prohibition was carried in the Mataura Licensing district should be declared invalid:
This is an inquiry ordered to be held in pursuance of a petition under section 48 of "The Regulation of Local Elections Act, 1876.
41
THE DECISION AT MATAURA
praying that the local option poll recently taken in the Mataura electorate may be declared void, upon the ground of various irregularities alleged in the conduct of the election.
The local option or licensing poll is taken by virtue of 'The Alcoholic Liquors Sale Control A the seventh section of which enacts that the returning officer of the electoral district shall, upon the day appointed for taking the parliamtntarv poll, proceed in the manner provided by the Electoral Act to take this licensing poll. This seventh section contains the further provision that, if a licensing poll is disputed, the matter in dispute shall be determined by a magisterial inquiry, held under the Regulations of Local Elections Act, in the " same manner as if the licensing poll were an electoral poll." By the decision in the case Bastings v. Stratford it was decided that the words " electoral poll," just quoted, mean an electoral poll under the Local Elections Act. and not an electoral poll under the law regulating parliamentary elections. This being the law. we have then to turn to section 50 of the Regulation of Local Elections Act to find what will invalidate an election. Subsection 2 says: "If upon any inquiry it appears that the poll was opened beyond, or was not opened "within, the hours hereby required, the whole election shall be void"; and subsection 6 says: " If upon any inquiry it appears that any other irregularity occurred in the proceedings which, in the opinion of the magistrate, tended to defeat the fairness of the election, the whole election shall be void." I have therefore to decide the matters in dispute, not by the common law of parliamentary elections, as laid down in the leading case of Woodward v. Sarsons. but by the above clearly-defined rules. By the common law minor irregularities will not disturb any election, unless they can be shown to affect the result ; but I am'bound here by the local election statute, and I have to decide the question in the same manner as if it was a dispute into the conduct of a Road Board election.
All the allegations in the petition come under one or other of the two subsections which I have quoted—cither subsection 2. which is so strict about the opening and closing time, or subsection 6, wheh deals with the irregularities which fended to defeat the fairness of the election.
To deal first with the allegations coming under subsection 2—that is. that strict time was not kept.—evidence was given ot (he hours kept at the following polling places : —Gore. Hedgehope, Otamita. Waikawa, and Waikawa Valley.
Gore.—This was the principal polling place, and was under tin general superintendence of Mr Boyne, the returning officer. The evidence here is very clear, and not conflicting. Everything was ail in eider and ready at 9 a.m.. when Mr Boyne shut the main door. and told the officials inside. '24 in number, to vote. This was don. . and the main door was immediately again opened at 9.15 a.m public. There was also a side door open al! the time. lam satis-
39
THE DECISION AT MATAURA
fied that the polling commenced at 9 a.m. here, and to have allowed the general public in. until the officials had voted would have caused a block. 1 therefore Hold that strict time was kept at Gore.
Bedgehope.—The evidence shows that the deputy-returning officer for the licensing poll was in his place and ready to take votes at 9 a.m., the door being open. It is not clear whether the deputyreturning officer for the electoral poll was at the booth punctually or not. several witnesses saying he was 20 minutes late, and it is admitted that the latter officer had the official seal. I have, however. only to inquire into the licensing poll, and not into the pranks of the electoral returning officer. The fact of the electoral officer, with the seal in his pocket, being absent for a short period, only affects the licensing poll to the extent that it means that the papers may not be given out simultaneously, and that the voting paper will not be stamped with the official seal, but with some other mark on the back thereof. Both of these facts will be dealt with later, when dealing .\-ith the question of irregularities. I hold, therefore, that Hedgehope booth kept the regular hours.
Otamita.—This is purely a question of evidence, and I hold that the petitioners have not proved to my satisfaction that the strict hours were not keDt.
iiuurs were not Kept. Waikawa.—This is also a question of evidence, and it i- not proved to my satisfaction that legal hours were not kept
Waikawa Valley.—The evidence here shows that the house of the licensing returning officer was gazetted as the polling place. The actual voting took place in the front room, which opened off the hall. The hall or front door was open all day. At lunch time and tea time all the officials left the front room, locked it, and retired for. say. 20 minutes into the adjoining room, where they had a meal. A voter who called during this interval of refreshment was given a meal before they all returned into the voting room, when he voted. This incident will be dealt with later on as an irregularity. I hold that the poll was here kept open for the time required by law.
This disposes of all the allegations that strict legal time wai not absolutely kept, as required by subsection 2, and in each instance I hold that the petitioners have failed to prove their case.
I shall next deal with the allegations of irregularities which tended to defeat the fairness of the election. The petition contains allegations under the heading of the whole alphabet, many of them in wide general terms, and a number of the allegations were withdrawn. The allegations that the deputy returning officers instructed and directed voters to strike out the top line, and permitted prominent prohibitionis: uto so doing, and the allegations of illegality against the S.M. at Invercargil] were properly withdrawn by counsel at the opening. Charges like these against responsible officers should not be lightly made.
THE DECISION
KJ
ularities i ~ tie. tion of proving the following:—(1) Papers not given simultaneously; (2) returning officer opened the sealed packet of the Dacre voting papers ; (o) inner compartments not secret enough ; (4) more than six voters in the booth at one time; (5) a voter having a meal with the officials.
(I) There is very little evidence of the ballot and voting papers not being given out simultaneously, and without going into a dissertation on this question, so ably argued at the hearing, I can say without hesitation that nothing which had the slightest tendency to defeat the fairness of the election was proved.
('-') It was proved that the returning officer did wrongfully open the packet of the Dacre voting papers to find out the true result of the polling at that place, as the telegraphic and postal returns from the deputy-returning officer varied. The recount has cured this irregularity, and in any ease, it did not affect the fairness of the election.
(3) The inner compartments in certain booths were rather makeshift concerns of maps, blackboards, desks, and easels, and would not always protect the child-like voter from an inquisitive, prying bystander. But those witnesses, chiefly hotelkeepers and licensing scrutineer-, who testified about the defective arrangements. did not complain to the deputy-returning officer at the time, and made no suggestion of improve, rothing that in any way affected the fairness of the election has been proved.
[1 was shown that at Gore. Ed md Wyndham, at certain times during the day. more than six voters were in the booth at once ; but nothing uns, . and, in my opinion, clause 119 is directory only, and i- intended to clothe the returning officer with the power of excluding voters, if he wishes to exercise it, when the crowding in tends to impede his work. Nothing has been proved that affected the fairness.
(•)) The fact of the voter having a meal with the officials was distinctly irregular, and contrary to the directions given in the Electoral Act. but I fail to see any unfairness in this particular instance.
I hold, therefore, that no irregularity which affected the fatness or tended to defeat the fairness at the election has. in m> opinion, been proved. As the petitioners have failed under botr sub-sections to prove their case, the petition is dismissed
Mr Neave appeared for the petitioners, and Mr Smith for Temperance party.
Mr Smith asked for costs, but the request was declined, each party being ordered to pay its own costs.
44
THE DECISION A'l ISHBURTON
APPENDIX VIII.
ASHBURTON POLL.
DECISION OF MR C A WRAY, S.M
February 5.
The Magistrate gave his decision this afternoon as follows ; The electors of Ashburton have decided by a substantial majority that no licenses are to be granted in the district, and I am asked to declare the poll void on two grounds: (1) That overcrowding was allowed at some of the booths; and (2) that voting papers were not given out simultaneously, as required by the Act. These objections would come under subsection 6of section 40 of the Act of 18 1 6 as irregularities in the election, which tended to defeat its fairness. As to overcrowding, it is quite evident that though an irregularity was permitted, causing some inconvenience, it in no way affected the result of the election, as no one was thereby prevented from voting. As regards the simultaneous voting, I think that the proper course was not followed at Mayfield and at Mount Somers, and each voter should have received his two papers at the same time, and retired with both to compartments. The method adopted was not strictly in accordance with the letter of the statute, but I cannot see that it would make any difference in the result or suppose that the result would have been altered had the proper method been used. It may have been a mistake, but it did not tend to defeat the fairness of the election. It seems to me unreasonable to contend that any such irregularity, without which no election is ever likely to be free can override the will of the people so unmistakably expressed. The petition is dismissed.
JUDGE WILLIAMS'S DECISION
45
APPENDIX IX.
THE JUDGMENT OF MR JUSTICE WILLIAMS IN BASTINGS v STRATFORD.
In order that the whole materials may be available for the reader to form an independent judgment, and that justice mav be done to the Stipendiary Magistrate, 1 have given above his decisionin full at Bruce and at Mataura, and also such defence, the only attempt I have seen, as the Daily Time- made for his deliverance. A-. however, the decision of his Honour Judge Williams in Bastings v. Stratford, affecting, as it doe-, every electorate in the Colony, is the controlling factor.in the whole situation, and as most readers will wish to have it for reference, I now add the full text of the judge's decision, and readers can study the relative portions for themselves. It was delivered on March 30. 1900, when the Liquor party (Mr Bastings being a hotelkeeper at Milton) appealed to the Supreme Court against a decision of Mr Stratford. S.M.. when he proposed to rectify an omission of the returning officer in the licensing poll that was then taken. The net result was that on that occasion, when reduction was carried, as on this, when no-license is carried, the electors of Bruce, through no fault of their own. were rendered impotent at the .polls. His Honour's judgment is as follows :
DUNEDIN. March 30. 1900.
Ai a sitting of the Supreme Court in Chambers yesterdav morning. Mr Justice Williams gave judgment on the motion for "a writ of prohibition to restrain the magistrate (Mr Stratford) from proceeding to carry into effect the order made by him on February 19. 1900. directing the returning officer to ascertain the result of the poll referred to in the said petition, and to make a declaration of the result thereof. The matter was argued by Mr Sim (instructed by Mr Donald Reid, of Milton) m support of'the motion and Mr A. S. Adam- in opposition.
His Honor -aid
This is a motion for a writ of prohibition to stay further proceedings under a petition which had been heard by the magistrate under section 7. subsection B, " The Alcoholic Liquors Sale Control Art Amendment. 1895.' and 'The Regulation of Local Elections Act. 1876." A petition has been presented under these Act* disputing the result of the licensing poll in the electoral district of Bruce on the ground that certain irregularities had taken place at the election. It was alleged that tile returning officer had not himself counted each vote; that -nine of the votes recorded for reduction had not been counted at all ; and that there were eases of double voting. The magistrate decided that it was the duty of thc
BASTINGS V. STRATFORD.
46
returning officer himself to count every vote, and that, as he bad not done so. he ought to do so; and the magistrate accordingly ord< red the returning officer to count the votes and to make a declaration of th< result, as provided by sections 8 and 9 of the Act of 1895. From any point of view this order is wrong. The returning officer has already purported to make the return prescribed by the Act. Having so done, he is functus officio. If his return is appealed against, and there is any power to correct it. that powei could be exercised only by the court itself before which the appeal is brought. That was decided in the case of Cotton v. Hawkins (15, X.Z.L.R.. 496). It was admitted by counsel on both sides that the decision of the magistrate that under " The Alcoholic. Liquors Control Act Amendment Act, 1895," it was the duty of the returning officer to count every vote himself could not be supported. I entirely agree with admission. By the seventh section of the Act of 1895. subsection A, it is provided that the returning officer of the electoral district shall take the licensing poll in the manner provided by the Electoral Act of 1893 for taking the electoral poll. By Bection 7. subsection n, the returning officer is to appoint a deputy-returning officer and a sufficient number of poll clerks for tlu sole purpose of attending to the business of taking the licensing poll. By section 7. subsection j. the polling booths in each district are to be the sanu a- those used at the taking of the electoral poll. The authority therefore given by subsection n to appoint a deputvreturning officer and clerks must necessarily mean to appoint a deputy-returning officer and clerks for each polling place, as otherwise it would be impossible to take the poll at all. Nothing i? said in the Act of 1895 as to what the duties of the deputv-return-ing officer are. except that lie is to see (subsection g) that every voter is provided with one voting paper for the licensing poll. It is necessary, therefore, to ascertain what his duties are from the provisions of the Electoral Act of 1893, as the poll is to be taken in the manner provided by that Act. The duties of a deputy-return-ing officer in taking the poll are set out plainly enough in sections 112, 113. and 114 of the Act of 1893. He is, at the polling place at which he presides, after the close of the poll, to open the ballot boxes and to ascertain the number of votes for each candidate, and he is to abstain from inspecting the writing on the back of the ballot papers, and take care that no one else sees it. When he ha.ascertained the total number of votes he is to make up the ballot papers into a parcel, seal it up, and send it to the returning officer. He is also to seal up in separate parcels and send to that officer the unused and spoilt ballot papers and the other documents specified in section 113. He is also to send to the returning officer, inter alia, a list of the total number of votes received by each candidate Then, after the returning officer has received the various documents from his deputies, he is, by section 116. to make arrangements foi counting the votes. By section 117 he is to compare the copies of rolls on which the fact of any person having voted has been noted..
44
JUDGE WILL I [SION
and if it appears that mor( polling p may open a j t i,. ballot papers con. on's number on the roll and disallow ; a ] up lnc ballot papers. By Bection I , make up he result, li . which enacts thai and ch vote. But if thi poll would nol in the manner present* how.- rfectly reconcil toral 593. That Ac( itself contemplates thai J! be ■ i the manner prescribed by provides that the returning offii counting ■ oon as pre poll. The lave to be coui and ■ with the sealed p si m in. They arc 10 In counted, not by op .id recounting each vote but the rolls an U for doubh votes, and when these have : dded up. Section 8 simply n truing officer is in the manner prescribed by the Electora in taking the electoral poll undei thai A.ct. T therefore, ilarity in the fact alleged in the petition that the returning officer had not himself counted the v. ond allegation. that there were votes in favour of reduction which had not been counted at all had. however, to be dealt with by tie. magistrate, and if he had jurisdiction to hear the petition, it was his duty to inquire int.. tin truth of this allegation. It is contended, or bi half of the plaintiff, that because the inquiry was not commenced within 14 days after the petition was filed, and I v.n days public notice was not given ot the time of holding the inquiry, as required by section 49 of "The Regulation of Local ElectionAct. 1876." that the magistrate had no jurisdition. It was further contended that if he had jurisdiction, and it was found that the allegation was proved that votes had not been counted which, when counted, altered the result of the poll, the only course the magistrate could take would be to declare the poll yoid. The jurisdicti. D to the magistrate by section 7. subsection o, of the A. That section is as follows:—" If the result of any licei poll is disputed, any 50 electors may require an inquiry to be held in manner provided by section 48 and th. subsequent sections of ■ The Regulation of Local Elections Act. 1876,' and the matter IS dispute shall be determined in the same manner, mutatis mutandis, as if the -aid poll were an electoral poll." The Act of 1876 is an Act regulating the election of members of local elective bodies. Section 18 provides that after any election anv candidate and
BASTINGS \ . STRA I b'ORD.
f.l
ke a declaration that the) believ< the election was void upon the grounds sot forth, and may petition for an inquiry. I iration and petition are to bi Resident Magistrate's Court. The section thei ~n to provide that tin resident magistrate oi such court "shall hold an inquiry a> to the mattei alleged in such petition, and may declare such li ct ion a of any candidate thereat to be void, and may declare any andidate to be duly elected, subject to the followin ditions." Thin comi : inquiry commenced within I uch petition is Bled, and the resident magistrate shall give not less than seven days public notice of the turn of holding the same. It was conon the authority of tin Queen v. the Justice- of London (93. 2 Q. 8.. 476), that, although the provisions of section 49 might be mandatory on the magistrate, still, that the mag mained clothed with authority to do justice in the matter, as. if he could not do would not at all. If section 49 had been detach. and tin words subject to the following condition- in ■ had been omitted, the al might perhaps have applied. The magistrate would have had a genera! authority given him by - ction 48, and that authority might remain if. thro dent or hi- own default, the provisions of section 49 were not cm th. By the insertion of these words. r, the Legislature : anguage which expressly makes the commencement of th( inquiry within 14 days and the seven days' notice by tin magistrate conditions precedent to the exercise of any jurisdiction b The law thus stated in " Max - - 3 : " Where the act or thing requir ndition precedent to the exercise of the jit; ompliance cannot be dispensed with ; and if the jurisdiction fails. If the - a jurisdiction, subject to specified eonditi in who otherwise would have no jurisdiction. T do m unless tin conditions implied with, or how the conditions can be dispensed with. Where the langi ear no argument from inconvenien Nor can it be said that such an absurdity results from the literal construction that this court must read section 48 as if tin. 1 words " subject to the following conditions " had been omitted. The intention of the Legislature, to bi gathered from the language that the inquiry should be commenced vcrv shortly ection. and th fied notice should be given of the inquiry. The Legislature may well have considered these - to be of supreme importance, and that it would be better that no inquiry should be held at all than that the hearing should be delayed from any cause whatever, even although the delav and tl the notice may have been the result of pure accidi nt„ Isie no -ufficicnt reason to conclude that the
49
JUDGE WILLIAMSS DECISION
Legislature did not mean what it has plainly said. As, therefore, the inquiry was not commenced wthin the time limited, and th( prescribed notice was not given, I think the magistrate had no jurisdiction, and that the writ of prohibition must go. As, however, the matter was discussed at the hearing. I will proceed to consider what, if the magistrate had jurisdiction, he ought to have done with respect to the second allegation, that there were votes in favour of reduction which had not been counted. Certainly it would have been his duty to inquire into the truth of the allegation, and to ascertain by counting the votes whether the allegation was proved. Then the question arises : Can the magistrate, if he finds a majority of votes in favour of reduction, give effect to tin result, and alter the return by declaring the proposition earned, or is the poll void.By section 7, subsection o, of the Act of 1895. the inquiry is to be held in the manner provided by section 48 and the subsequent sections of the Act of 1876. Section 51 provides that no inquiry -hall be made as to any election, except a- to the truth of any of the allegations set forth in the foregoing section 50. Section 50 provides that if, on any such inquiry, it appears that certain thingthere specified have happened, the whole election shall be void. If it appears that certain other specified things have happened, the election of a candidate is to be void, and the candidate next highest on the poll is to be declared elected. If it appears that a person voted who was not entitled to vote, or gave more vote- than he was entitled to give, these votes are to be struck off. and the candidate then having the highest number of vote- i- to be declared elected. The allegation that the returning officer has omitted to count the votes is not precisely set forth in section 50. It conies. however, under paragraph 6 of that section. " that any other irregularity occurred in the proceedings which, in the opinion of the resident magistrate, tended to defeat the fairness of the election. If such an allegation is proved, section 50 provides that the whole election shall be void. If. therefore, at a local election a I candidate alleges and proves that the returning officer has omitted to count votes given in his favour, and that with tli would have a majority, the me iimot declare him elected. but the whole election is void. The provision i- :i curious one. and -o is the provision that if a candidate is proved to have- obtained a single vote bv bribery the election is not to be declared void, but the other candidate is to be declared elected, however small tin number of votes he may have polled. Why the Act of 1876 w:i- thus framed it is impossible to discover; but so it is. The inquiry here is to be held in the manner provided bj and the subsequent sections of that A.ct. S I and 51 are certainly subsequent sections, and they regulate the procedure on such an inquiry. At a local election poll persons are vol at a licensing poll propositions. If section 48 and the subsequent sections be applied by substituting propositions for persons, and making the necessary adjustments, then, as vote- omitted to be
BASTINGS V. STRATFORD.
50
counted in favour of a person would render the election void, so - omitted to be counted in favour of a proposition would have the same effect Tlu result is odd. but not mote odd in one case than in the other. It was said that, although by section 7. sub- -< ction o. the inquiry was to be held in the manner provided by the above section, yet by that subsection the matter in dispute was to be determined in the same manner, mutatis mutandis, as if the poll were an electoral poll. It was contended that tin- meant that the magistrate, in deciding, was not to be governed by the Act of 1876, but by the Elections Petitions Act of 1880 and the general law relating to elections. That is, that the magistrate, in deciding, was not to exercise jurisdiction under the Act of 1876. but was to decide, mutatis mutandis, as if he were an election court, constituted under " The Elections Petitions Act, 1880." trying a petition against the return of a member of the General Assembly. Ido not think the section will bear this construction. The words "an electoral poll." following on the direction that the inquiry is to be held in manner provided by " The Regulations of Local Elections Act, 1876," refer to an electoral poll held under that Act. To enact that an inquiry should be held under one set of sections, and that the decision should be given on principles altogether inconsistent with those expressed in the sections under which the inquiry is to be held, would be an absurdity. The difficulty arises from the fact that if the poll under the Licensing Act is void, there is no provision for another poll being taken ; while, if the election of candidates is declared void under the Act of 1876. a fresh election can be had. But that there was an omission on the part of the Legislature to provide for the contingenev of a licensing poll being declared void is plain from any point of view. If the magistrate were not governed by the Act of 1876, but had to decide as if he were an election court under the Act of 1880. trving a petition against the return of a member of the General Assembly, there are many cases where, under the general law of elections, lie might have to declare the poll void. If he did so. the Legislature has made no provision for the poll being retaken. I think, therefore, that if the magistrate had had jurisdiction, and had found that there were votes in favour of reduction which had not been counted, he could not have given effect to the result ; but that, under section 50 of the Act of 1876, the whole poll would have been void. There will be a writ of prohibition, as prayed.
Mr Adams observed that in the judgment his Honor had statnl that there was no ground for the allegation in the petition that the returning officer should personally count the votes. That allegation was not in the petition, but in the magistrate's judgment, and was not raised on behalf of the petitioner.- at the hearing.
Permanent link to this item
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Bibliographic details
APA: Fraser, P. B. (Philadelphus Bain). (1903). The electors of Bruce versus the law courts of New Zealand : the magistrate's judgment in voiding the Bruce licensing poll freely criticised : learned counsel for the petitioners appropriately handled : the state of the Licensing law in Bruce and the colony opened up in an address to the electors of Bruce. Bruce Prohibition League.
Chicago: Fraser, P. B. (Philadelphus Bain). The electors of Bruce versus the law courts of New Zealand : the magistrate's judgment in voiding the Bruce licensing poll freely criticised : learned counsel for the petitioners appropriately handled : the state of the Licensing law in Bruce and the colony opened up in an address to the electors of Bruce. Milton, N.Z.: Bruce Prohibition League, 1903.
MLA: Fraser, P. B. (Philadelphus Bain). The electors of Bruce versus the law courts of New Zealand : the magistrate's judgment in voiding the Bruce licensing poll freely criticised : learned counsel for the petitioners appropriately handled : the state of the Licensing law in Bruce and the colony opened up in an address to the electors of Bruce. Bruce Prohibition League, 1903.
Word Count
23,411
The electors of Bruce versus the law courts of New Zealand : the magistrate's judgment in voiding the Bruce licensing poll freely criticised : learned counsel for the petitioners appropriately handled : the state of the Licensing law in Bruce and the colony opened up in an address to the electors of Bruce Fraser, P. B. (Philadelphus Bain), Bruce Prohibition League, Milton, N.Z., 1903
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