RESIDENT MAGISTRATE'S COURT,

Satobday, December 18. (Before Dr Giles, 8.M.) IK THE MATTER OF AN ELECTION OF MAYOR FOR THE BOROUGH OF HOKITIKA. His Worship gave bis decision herein (adjourned from Friday) as follows : — The petition upon which this enquiry proceeds calls in question the election of Mr Learmonth as Mayor of Eokitika, on the ground that the list of voters used at the election was not prepared according to law, and that a number of persons voted who were not entitled to do so. The alleged illegality was the use of a supplementary list of voters, constituting an addition to the burgeas roll of the borough, which had been prepared at the time and in the manner directed by the law, and in consequence of this addition to the electoral roll some 85 persons, it is said, voted who were not entitled to do so. The Municipal Corporations Act, 1876, provides the mode in which the burgess roll is to be prepared. By the end of March in each year a list is made out from the valuation roll, but leaving out the names of those who have not paid their rates, who are relegated to a separate list called the " Defaulters List." These lists are open for inspection and objections until the 15th April, after which the Council hold? a sitting at which all claims and objections are determined ; and the list, when corrected and made complete is signed by the Mayor and two members of the Council, and comes into force on the 1 1 June as the burgess roll of the borough continuing in force until a new burgess roll comes into force in like manner. This being the mode in which the burgess i oil is prepared, it seems clear that no other or different list of burgesses, deriving therefrom a title to vote, can exnt at the same time, or for the same borough or ward, besides the one so coming into force on tbe Ist June in every year, unless some express provision can be iound for the preparing of such second or supplementary list. In the present case a stipplemedtaby list was framed for use at the election of a Mayor iv November, such list containing (Presumably, the names of persons not on the burgess roll tor the year, but qualified in tbe opinion of the framers of . the supplementary roll to vote at tbe election of Mayor. The question now is what authority can be shown for this proceeding. In answer/ to , this question reference is made to the 6th section of Tbe Municipal Corporations Acts Amendment Act, 1880, which amends the, 21st section of the Act of 1878, by the addition of the following words;— "P^vided that for the election of Mayor and Auditors in any such borough a burgess roll t may be prepared comprising all the ratepayers of the borough." When these words are added to the clause mentioned the meaning seems very clear on the face of it. It is that inasmuch as the use of separate ward rolls would be inconvenient for the election of a Mayor, who is 'elected for the whole borough as one constituency, the preparation of a single roll, for the purpose is authorised, but such roll will consist of nothing more than tbe several ward rolls thrown into one, nor can any authority for the insertion of new names be presumed. It can only be given, I think, by express Words. It is said that such express authority is found in the words of the clause empowering the insertion in the burgess roll for the election of Mayor of " all the ratepayers of the borough," and it is alleged that ratepayers are those who are liable for rates, and not those who pay them. If this were the case it would follow that a roll for the election of Mayor might at any time be formed by putting together the burgess roll and ths defaulters' list. But it really seems unnecessary to pursue the argument because, whatever may be the effect of the added clause, it is clear, from the nature of the section to which it is added, and from the use of the word "such," that it refers only to boroughs that are divided into wards, if, indeed, the clause could be regarded as the Returning Officer has regarded it, as authorising the addition of new names to the list of voter?, it would certainly be as absurd as his counsel has; represented it to be, that its operation should be limited to divided boroughs. But that absurdity shows that the interpretation is a wrong one. lam therefore clearly of an opinion that the use of this supplementary roll was entirely illegal, and that it vitiates the return made by the Returning Officer. The next question is whether the defect can be cured by ah inspection of the ballot papers and the elimination from the returns of the votes wrongly given, under the last clause of the 4jOth section of the Regulation of Local Elections Act, 1876 ; or whether it ranks under the 6th subsection of the same section as " an irregularity in the proceedings which tended to defeat the fairness of the election." It appears to me that the flaw in the present proceedings might be brought within the bare words of either of theqe clauses, and that is necessary therefore to consider the scope and spirit of the 50th gectien as well as such other principles and analogies as may throw light on the matter. Iv tbe cases contemplated by the second and third parts of this section the consequences of an error committed are to be removed, in the one case by setting aside the election of a particular candidate and putting another in his place ; in the other by an inspection of the ballot papers and striking off the votes illegally given. In the preqent case some 85 votes have been illegally given, and I am asked to order an inspection of the ballot papers for the purpose of striking off these votes and ascertaining what effect this would have upon the returns of the polling made by the Returning Officer. I

shall state briefly why I <l.i not think this the proper course to adop!. First, we find a series of six events or .ccarren3e9, any one of which will render (iis whole election void. With the exception of one of the3e, which refers to intimidation or violence, all these heads concern tho conduct of the election by the proper officers, and the 6th head refers generally to irregularities in the proceedings tending to defeat the fairness of the election. The general inference from these clauses seems to be that when the flaw is a flaw in the proceedings of the officers conducting the election, if the matter is sufficiently serious, no attempt is to be made to measure the precise effect of the error with a view to eliminating it, but the election is void ab initio. Secondly, a scrutiny ot t^e voting papers is not necessary in order to determine the truth of any allegation in the petition, as laid down in section 53. The truth of the allegations is established without a scrutiny, and the only object of the scrutiny would be to ascertain tor which of the candidates each of these 85 votes was uiven, a question not raised by the petition, nor relevant to the issue concerning:, the legality of the proceedinars. Thirdly, I think the class of cases contemplated by the third part of tbe 50th section comprises chiefly those cases where the wrong done is the act of the voter himself, whether done wilfully or by inadvertence as distinguished from the act of the Returning Offier. lam inclined to the opinion that if it is intended to challenge votea i under this , head by petition, the votes so called in question ought to be specified in the petition, and the voters concerned should have an opportunity of sustaining their votes given. But in this case these persons were invited to vote by the publication of an electoral roll containing their names, and I do not think their individual votes ought now to be examined in a proceeding to which they are no parties, especially when the law has a different provision which is fully adequate to meet the present case. The applicability of the third part of the section to this election is, in my opinion, to say the least of it, very doubHM; but the applicability of the sixth sub-section cannot, I think, admit of any doubt at all. An error of serious importance has, as it seems to me, been committed in ■ the conduct of this election, by the use of an illegally-prepared electoral roll. 'I think this is such an irregularity as is contemplated by the words of the Act, and I believe that not only its legal, Jbut its right and appropriate effect is, that the whole proceedings are vitiated. My judgment accordingly is that the allegations of the petition have been sustained, and that the matters so alleged and sustained constitute an irregularity in the proceedings, which tended to defeat the fairness of the election. From which it follows tiaat the whole election is void.