ELECTION PETITION FAILS.

Press, Volume LVI, Issue 16851, 3 June 1920, Page 8

ELECTION PETITION FAILS.

iIBTUEHIKG OFFICER CRITICISED.

Reserved judgment waß given by Mr S.. E. McCarthy, S.M., yesterday, in regard to the petition by Edwin John Howard and others for an order declaring void the election of Messrs Thomas I>. Boag and James Storry to the Ljtttelton Harbour Board for the, Paparua combined 'district.

Hi 3 "Worship, held: —

(1) The term "at the' time of nomination" occurring in sub-section 1 ol' section 2 of the Harbours Amendment Act, 1914, is the period between the publication of the notice requesting nominations and the time for closing samo occurring in sections 7 and 8 of the Local Elections and Polls Act, 1908, and not the precise point of time when the nomination is lodged with the returning officer. (2) Thp deposit prescribed by subsection 1 of section 2 of the Act may bo made either by the nominated candidate or some agent acting under his authority, egress or implied. (3) That it is inexpedient for a returning officer, or ,any of his assistants, to allow himself to bo constituted such an agent. (4) The returning officer for a harbour board election is charged with a duty to reject any nomination unaccompanicd by the prescribed deposit. (o) This deposit may be made either contemporaneously -with the putting in of the nomination, or before or subsequent thereto, but so that the deposit is made within the time of nomination as above denned. j

In his judgment, Mr McCarthy said, the returning officer, Mr George Maginness, placed a Mr McAlpine on the list of nominated candidates, though no deposit was received with the nomination. Sub-section 1 of sect-ion 2 of the Harbours Amendment Act, 1914, was, however, clear and unequivocal. No person could be deemed to be a candidate unless the prescribed deposit had been made at the time of nomination. As it happened, Mr McAlpine, before the day of election, withdrew his nomination and r-o harm was done. Had he proceeded to election and been elected, or had he polled -a substantial number of votes without having been elected, the' election must have been voided. There could be no doubt that the nominations of Messrs Free and Howard wero in order.

Referring to the nominations of Messrs Boag and Storry, his Worship said: "In my opinion it is inadvisable that either the-returning officer or his wife or any of his assistants should charge themselves with the duty of providing deposits for candidates for election. I am" not suggesting any bad; faith in the present cstse. 1 would remark, however, that_ proof of the fact of such deposits having been provided bv tho persons referred to is comparatively easy, and yet most difficult to disprove. Further, such a proviso has a.' tendency to create a partisan attitude in tho returning officer." Some comment, his Worship saitl } had I>een made as to the personal delivery of the nbminations of Messrs Boag and Storry to the returning officer in ono of the streets of Christchurch. Section S of the Local Elections and I'oils Act, 1908, expressly provided for such a personal delivery. Doubtless it- was inexpedient that such delivery should talce pi are otherwise than at the place Bet out in the notice asking for nomi-

nations, yet this consideration did not do away with the express words of section 8. There could bo no doubt xiiero was not n, sufficient number of rolis to permit of electors not candidates making us© of them for the purposes of tj*e election. Lastly, the returning officer had not disclosed the reason for do- j stroying one- of the nominations put .n on behalf of Mr Howard. Both nomi- [ nations should have been preserved to j vibide th# result of any petition, and it must not bo overlooked that the nomination paper destroyed was quite_ evidently the one on which tho candidate proposed to rely, namely, the last ona lodged. There had been a. want of candour on the part of the returning officer and Ins assistants towards the two defeated candidates and their agents, which one did not expect in an official exercising the function of a quasi-judi-cial office. However, the petitioners had charged themselves with, the duty of affirmatively proving that at the time of nominations no deposits wbro lodged with the respective nominations of Messrs Boag and Storry. This _ duty they had failed to discharge. Suspicious circumstances there might be, but there was no proof. With great difficulty, he had arrived at the conclusion'that Mrs Maginness did, with tho authority of Messrs Boag and Storry, lodge the prescribed deposits within the prescribed time. Was it, then, competent for a. candidate to lodge a deposit by an agent, or must the deposit be the personal act of the candidate? The gene-i-al law of agency was well recognised in the conduct of general elections. All the questions • having been answered favourably to the respondents, the jietition should be dismissed, and it was dismissed accord.ingly. In his opinion there should be no order as to costs. The attitude of the returning officer and his assistants before the time of closing of nominations was calculated to create the impression thaf no deposits had been lodged by either Mr ■ J3oag or Mr Storrv. i - I