UNPAID RATES

Ashburton Guardian, Volume 59, Issue 19, 2 November 1938, Page 3

UNPAID RATES

REFUSAL OF RIGHT TO VOTE. COUNTY ACTION UPHELD. (Per Press Association.) DUNEDIN, November 1. A reserved decision of particular importance to local bodies throughout the Dominion, involving their statutory right to debar any ratepayer from voting in local body elections who has paid his rates, but not the 10 per cent, penalty imposed for late payment, was delivered by Mr J. R. Bartholomew, S.M., in the Magistrate’s Court this morning. The case was brought against tho Peninsula County Council by John Porterfield (Portobello) and Alexander Porterfield (Macandrew Bay), farmers. They each claimed from tho council, and John Seaton, county clerk, £SO damages arising out of the defendant, Seaton’s, action in placing their names on the defaulting ratepayers’ list. This action resulted in their application to vote at the Peninsula County Council election last May being refused by the returning officer.

Another aspect of the claim was that Alexander Porterfield, who is entitled to vote in three ridings in the county, was debarred from doing so because the penalty fqp rates in one riding had not been paid, even though the rates on the properties in the other ridings had been paid in full. The Magistrate found that the action of the county clerk in placing names of both plaintiffs on the* defaulters’ list was upheld by law in his capacity as returning officer. The actions of eachplaintiff accordingly failed, judgment was given for the council and Seaton. ; Clerk’s Discretion. The legal aspects involving placing on the defaulters’ list the names of ratepayers who had left unpaid the additional 10 per cent, charge were reviewed by the Magistrate. He said that all that could be urged against the clerk was that he came to a wrong decision in law on a matter which it was necessary for him to decide before compiling his list. He liad said, during his evidence, that before preparing his list he referred to two opinions given by a solicitor to the Counties’ Association, and reached the’ decision that he was bound to pla.ee each of the Porterfields on this list. Other ratepayers who made default in payment of the 10 per cent, penalty only were also placed on the list. “The returning officer, in this case the county clerk, has to a certain degree a ministerial duty,” said the Magistrate. “But he is not to all intents and purposes a judicial officer. His duties are neither entirely ministerial not wholly judicial. They are of a mixed nature. It cannot be contended that he is to exercise no judgment, nor and ’discretion whatever in. the admission or the negation of votes. Tlie greatest confusion would prevail if such discretion were not to be exercised-. On the other hand, an-officer could not discharge his duty without great peril and apprehension if, in consequence of a mistake, he became liable to an action. I have not found it necessary to adjudicate the correctness or otherwise of the clerk’s decision, for, -in my opinion, he comes within the principles laid down by the authorities, which afford protection to one in his position who regularly discharges his duties. It is not necessary to consider further the question whether in any event the local body—rtlie Peninsula County Council—would he liable for the default of the clerk in carrying out a statutory duty. Judgment is for the defendants. Costs are allowed the council for £3 3s in the case of each of the. plaintiffs.”

The council and the clerk did not ask for witnesses’ expenses.