INTERESTING JUDGMENT.

Auckland Star, Volume LIII, Issue 143, 19 June 1922, Page 4

INTERESTING JUDGMENT.

COUNTY COUNCIL POLL. '"- RETURNING OFFICER'S DECLARATION. UPHELD BY JUDGE. At the Supreme Court this mornin" his Honor Mr. Justice Stringer delivered judgment in the case of Thomas Leonard and others v. John Hearsey Salmon, S.M., and the Hauraki Plains County Council. At the original hearing Mr. Garland appeared fcr the plaintiffs and Mr. H. P. Richmond and Mr. L. P. Lcary for defendants. "The Hauraki Plains County Council having proposed to raise a special loan of £30,000 for the purpose of certain public works, a poll of the ratepayers, as required by the Local Bodies Loans Act 1913, was taken upon such proposal,'' said the judge. "'The poll was taken on January 18, 1922, when 398 votes were cast in favour of and 28.3 against the proposal. On February 23 the plaintiffs filed a petition for inquiry in the Magistrate's Court at Thames, and the hearing of the petition was fixed for March 7, on which date the defe: dant, John Hearsey Salmon, refused jurisdiction on the ground that the petition had not been tiled within the time limited in that behalf. "The plaintiffs claimed that the magistrate was wrong in holding that he had no jurisdiction to hear the petition and applied for a writ of mandamus to compel him to do so. The only question to be determined was whether or not the petition was tiled within the prescribed time, as, admittedly, if it were filed in time the magistrate had jurisdiction and ought to have exercised it, but, if on the other hand the petition was out of time, the magistrate had no jurisdiction, and rightly refused to hear and determine it. The determination of the question involved depended upon the construction of certain sections of the Local Elections and Polls Act 1908, and its amendments, and of the Local Bodies Loans Act 190S, which sections, said his Honor, were somewhat confused and perplexing. "In general the whole procedure of taking a poll,'' he remarked, "other than an election, was conducted by the .©turning officer under the appropriate provisions of the Act just mentioned. In the case of a poll to be taken under the Local Bodies Loans Act in respect of the raising of a special loan under that Act, there were however, certain provisions in connection therewith the performance of which was cast upon the local authority proposing to raise the loan. The local authority .has to obtain the consent of the ratepayers. These preliminary steps having been taken it was Beeessar./ that a poll of ratepayers should be taken, and east, upon the chairman of the local authority, and not upon the returning officer, as was the case in ordinary polls, the duty of publishing in the manner prescribed, a notice setting iarth the day on which the poll was to be taken." It would be seen that the returning officer did not formally declare that the proposal had been duly carried. "I think he should have done in the same way as he is required by the section to have declared the candidate in an election who had received the highest number of votes to be duly elected." said his Honor. "Nevertheless, he having ascertained and declared publicly the number of votes for and against the proposal, showing that the terms of the section had been complied with, there was, in my opinion, no necessity for a formal declaration that the proposal had been carried. In other words, the publication of the number of votes recorded for and against the proposal was in itself a sufficient declaration." He considered the section in question in no way interfered with, or modified, the duties and functions of the returning officer. Pie was the official who conducted the poll, supervised the scrutiny of the rolls, opened the voting papers, and counted the votes, and he therefore was the only person who could make in the first place a valid declaration as to the result of a poll. The chairman had no means of ascertaining the number of votes recorded for and against the proposal, and must necessarily rely upon the result of the poll as ascertained and declared by the returning officer. The motion was dismissed, with co=ti amounting to £15 10/.