'PURELY TECHNICAL.'

Ashburton Guardian, Volume XLII, Issue 9473, 4 March 1922, Page 2

'PURELY TECHNICAL.'

RANGER HIS HOUSE. ACTION FOR TRESPASS. At the end of last year the Council of the South Canterbury Acclimatisation Society dismissed their ranger (Mr J. G. Leckie) and required him to give up their house, as they wanted it for the new ranger. As possession of the house was not given they brought an action for trespass against Leckie. Evidence in the case was heard at Temuka on Tuesday last and legal argument was heard by Mr E. D. Mosley, S.M., in Timaru on Thursday. Mr Rolleston appeared for the Society and Mr Campbell for the defendant. Mr Campbell said that the point submitted for decision was whether the acts of the Council of the Society (in particular the dismissal of the ranger) were valid, seeing that the election of the existing Council had been participated in by persons who claimed membership of the Society under an amended rule, which was passed in May 1918, but which had not been registered as required by section 57, subsection 3 of “The Animals Protection Act 1908.” This subsection provided that unless the rule was registered it had no force or effect. Mr Campbell contended that by reason of the non-registration of the new rule the Council were not legally constituted, and their acts were therefore invalid. At the annual meeting of the Society in 1919, 1920, and 1921 persons had voted who had no right to do so, and some of these persons had been elected to seats on the Council. The election of members of the present Council had been participated in by what were known under the new rule as registered members. To be a properly qualified member of Council a person must be a member of the Society itself. The registered members had been treated as members of the Society by reason of were but through nonregistration of the rule they were not entitled to .vote. Three elected members of the Council obtained their qualification under this new rule, hence they were not qualified to hold seats, and this iact, coupled with the fact of the unqualified persons voting, voided the election of the Council and voided all their subsequent acts, including the dismissal of the ranger. The Magistrate: “I have not looked into the point, but this is merely an action for trespass, and it occurs to me that the defendant may be estopped from denying the authority of the Council now, after having previously recognised such authority.” Mr Campbell said he did not think the question of estoppel could arise in the circumstances, as the ranger only recently discovered the irregularity. The only legal members of the Council at the present time were the life members. Counsel added that he regretted to say that he could not quote for the benefit of the Court any analagous case. Mr-Rolleston said that even assuming that there had been some irregularity in regard to the qualification of members of the Council, that would not bo sufficient to upset the acts of the Council, and the contention of the other side meant that all the acts of the Council for the last three years were void. It might be conceded that in 1921 at the annual meeting for the election of the present Council there were sufficient nonqualified members voting to have affected the result oi the election, but that would not conclude the point, because there was no means now of ascertaining whether the result was in fact actually affected. If it was there was nothing to show that the members of the Council who might have been elected would have made any difference to the decision of the council in dismissing the ranger. For the defendant to succeed he would have to prove, not that there was a possibility of the election having been affected, but that it was in fact affected. There was no roll of electors for l the election, and this made it impossible to tell how the non-qualified

registered members exercised their votes. Under the Local Elections and Polls Act the Magistrate had power, in case of a disputed election, to order a scrutiny of the votes and to disallow the votes of any person who was not entitled to vote. If a roll had been kept the votes could have been traced, and it could have been ascertained what the result of non-qualified persons voting was. But as a roll hacl not been kept, that could not be done in this case, and this would no doubt influence the Court in coming to a decision which would not throw the affairs of\ the society into a state of chaos, but which would uphold things as they were. To say that everything the council had done for the past three years was illegal on account of a mere technicality would be to plunge the affairs of the society into a state of topsyturvydom, and before coming to such a decision the Magistrate must be satisfied that the technical irregularity had affected the result of the election. If he was not so satisfied he would not declare an election void. If the Court held that the ranger had not been properly dismissed what would the result be ? Could he sue the council for his salary P Apparently the defendant’s contention was that the acts of the council were all void during the past three years. If this were so, what would "be the result in regard to the ranger’s salary ? Could he be sued for the return of nis salary on the ground that it had been paid to him by a body which was without authority to pay it ? Mr Rolleston further contended that the doctrine of estoppel applied in this case. The ranger admitted that he knew of the invalidity, caused through non-registration of the rule, two or three months before his dismissal, and accepting his salary with that knowledge was sufficient to constitute estoppel. Halsbury’s “Laws of England’’ were quoted in support of this submission. Counsel further contended that Leckie’s dismissal was an administrative act by the council, which had full power to engage and dismiss its servants. It was not a corporate act by the society. Such an administrative act could not be declared invalid. The council having been in fact appointed, whether legally or not, it was too late now to challenge their acts. It was open to question whether the defendant could raise the question in these proceedings. Before the point could be raised on an action for trespass, action should have been taken to test the validity of the election. It was not possible to raise the point now on an action for trespass. Further, the defendant’s appointment had been signed by J. S. Rutherfod, as chairman of the council, and not being under the seal of the society it was not a corporate act. It followed, therefore, that as his appointment was not a corporate act it was not necessary for his dismissal to be a corporate act. The absence of the seal invalidated the ap-' pointment altogether, and he had no status at all; and as his appointment was not a corporate act, the rules and regulations which had been quoted in support of the defendant’s case did not apply. The committee which appointed him, or their successors, had full power to dismiss him, apart altogether from any statute. The points raised were purely technical, and there was nothing meritorious about the case. No one had been prejudiced in any way by the informality. Had the unregistered amendment been sent forward it would have been registered in the ordinary way, and it was too late now to raise the objection in an action such as this. Mr Campbell briefly replied, and the Magistrate reserved his decision.