DRAINAGE BOARD ELECTION

Press, Volume LXXXIV, Issue 25638, 29 October 1948, Page 9

DRAINAGE BOARD ELECTION

—•— DEATH OF ONE CANDIDATE

POLL COUNTERMANDED AND CALLED AFRESH

Because one of the two candidates nominated, Mr F. Robinson, has died, the election notified for the Woolston sub-district of the Christchurch Drainage Board has been countermanded;. Tne election has been renotitied by the board's secretary and returning officer (Mr R. R. Senior), who has also called tor new nominations, closing at noon on November 8. The election will be held on the same day as the main Drainage Board poll. November 17.

Mr Robinson's death created a problem for Mr Senior over the conduct of the election. A legal opinion was gought from the board’s solicitor, and it is in terms of his recommendations that the election has been countermanded and a fresh one called. “After a careful perusal of the board’s own numerous acts [i.e., acts of Parliament! and of the Local Elections and Polls Act, with its amendments, I can find no statutory provision [for the situation which has arisen], nor can I find any section in these statutes which brings into operation the Electoral Act,” said the board's solicitor, in a written opinion. “By the Electoral Act, 1927, there is enacted a section covering the exact situation. Sub-section 1 of section 116 enacts that if a duly nominated candidate, who has not withdrawn, dies after the day of nomination and before the polling day the returning officer shall countermand notice of the poll. "Sub-section 3 contains provision for all proceedings with reference to the election being commenced afresh in all respects, with a proviso that it shall not be necessary to nominate afresh any candidate who. at the time of the countermand, was duly nominated.”

“No Statutory Solution” After quoting legal authorities the solicitor said there was no statutory solution of the problem, nor did the only two cases found dealing with the matter (both of which occurred overseas) give much guidance. The alternatives, in the solicitor’s opinion, were (1) to proceed with the election; or (2) for the returning officer to countermand the election and hold a fresh one.

“As to (1),” he continued, “it seems wrong in the nature of things to proceed with an election where one of the candidates, being dead, is no longer capable of entering upon office if elected. This, of course, is not absolutely fatal to the election because (a) if the deceased were elected, then steps could be taken to hold a by-election for a casual vacancy; and (b) if the living candidate were elected, the persons who felt that a wrong procedure had been followed would have power under the Local Elections and Polls Act to dispute the election by filing in the Magistrate’s Court within 14 days after the declaration of the result a petition demanding an inquiry.

“The second alternative is to countermand the notice of the poll and hold a fresh election. I can find no warrant for countermanding anywhere. There is justification for it, however, as being a reasonable act in the circumstances, as being by way Of analogy with the Electoral Act, 1927, and as being fair to all persons and to all interests concerned. ,

“So far as I can see, the only person who could complain through the board following such a course would be the remaining candidate or his party, if he represents a party. His complaint could hardly be as to the fairness of the course taken, because he would still remain as a candidate, but he might claim that he is entitled to be declared elected.” Answer to Objection “On this point so far as the solicitor could see, there was a complete answer, in that the Local Elections and Polls Act provided for only the following instances in which a returning officer might declare a person elected: (1) if the number of candidates did not exceed the number of vacancies; or (2) after an election, when he declared the vacancies filled by the appropriate number of candidates who had secured the highest number of votes.” The solicitor then discussed the point whether, if a fresh election were called, it would be an election to fill a casual vacancy, to fill an extraordinary vacancy, or an ordinary election. “In the result,” he continued, “it appears to me that it is not possible to comply with any of the statutory provisions completely. It may well be that the board should countermand the election, give public rfotice of this, and call for fresh nominations for the district concerned, and fix a closing date not less than seven days after.” Mr Senior has consulted the Internal Affairs Department in Wellington and has been told there is nothing statutory to indicate the course to be taken. He was advised to solve the problem in his own way.