THE GREY SEAT

Grey River Argus, 14 September 1918, Page 4

THE GREY SEAT

ELECTION PETITION

JUDGMENT OF THB COURT.

PETITION DISMISSED.

COSTS ALLOWED RESPONDENT

Th* hearine of the election petition wal—3d on Wednesday before Honours Mr Justice Chapman and Mr JuS Sim. Mr M. Hannan, wath Mm Mr FA. Kitchingham and Mr L Patterson, appeared for the petitioner Thomas Eldon Coates whd.t Mr £J. O'Tleean with him Mr W. J. Joyce a PP Ia g red for the respondent Henry %Te n ?ea^g a b d eing concluded Mr Justice Chapman announced that the Cou . rt would give its decision at 11 a.m. the following morning. The folloying judgment was deliver ed by the Court yesterday morning :— The petition attacks the return ot the Respondent, upon grounds which seek to impeach the votes of a largo number _>f persons, who are assumed by the Petitioner to have voted tor the Respondent. The particulars set out the grounds upon which these votes are attacked, to the number ot nipTe than 300. The notice filed by the Respondent similiarly impeaches the votes assumed to have been cast in favour of Petitioner, to the number of 116. The majority of votes in favour of Respondent was 148. It is evident, that to deal witli considerably over 400 disputed votes, would involve a large amount of detailed evidence to be given, presumably, by a very large number of witnesses. In view of these circumstances the counsel flor the respective parties have agreed upon certain questions the answers to which they think, may enable the parties themselves to dispose of a large number of the disputed votes. The questions thus formulated are as follows : 1. — An unmarried person who is | registered on the Grey Electoral roil j obtains employment in an adjoining Electoral District more than six monthß before the date of election and resides there- whilst following his occupation, but does not apply for reg-* istration or become registered on the Electoral roll of such adjoining district. He returns to the Grey Electorate occasionally and remains in such Electorate for more than six days, either continuously or at intervals during the six months immediately pre ceding the date of the election, staying on such occasions either at a hotel or boarding house. Is his vote valid 't 2. — A married person who is registered on the Grey Electoral roll obtains employment in an adjoining Electoral District more than six months before the date of th© election and resides there with his family whilst following hus occupation, but does not apply for registration or become registered on the Electoral roll of such adjoining district. He returns to the Grey Electorate occasionally and remains in sucn electorate for more than six days either continuously or at intervals during the six months immediately preceding the date of the election Btaymg on such occasions either at a hotel or a boardinghouse. is his vote valid? 3. — An unmarried person living with his relations in the Grey Electorate and registered on the Grey Electoral roll obtains employment in an adjoining Electoral District more than six months preceding the date of the election and remains there whilst *following his occupation but does not apply for registration or become registered therein. He returns to the Grey Electorate occasionally and remains therein with such relatives for more than six days either continuously ' or at intervals during the six months immediately preceding the date of the election. ls his vote valid? 4. — A married man living with his wife in the Grey Electorate and registered on the Gery Eletcoral r.oll obtains employment in an adjoining Electoral District more than six months preceding the date of the election and remains there whilst folowing his occupation but does not apply for registration or become registered therein. He returns to the Grey Electorate occasionally and remains therein with his wife for more than six days either continuously or at intervals during the six months immediately preceding the date of the election. * Is his vote valid? 5. — A person duly registered as an elector leaves the Grey Electoral District more, than one month but less than six months prior to the date o* the election having no intention to. return, and not in fact returning. Is his vote valid? 6. — A person whose name does not appear on any roll' for the Electoral District of Grey since the year 191.'i and whose name has not been removed votes on declaration. Is his vote valid? 7.— A person obtains a ballot paper in consequence of a false statement in his declaration and recorcls his vote. Is his vote valid? 8. — A person whose name is already registered on the Itoll of an adjoining electorate is enrolled on his own application in the Electoral District of Grey his name still remaining on the roll of such adjoining district. Is his vote valid In approaching the subject of the proper construction of the statute in-, volved in these questions, wo recognise two leading principles which have been recognsed also by counsel during the argument. These are, first, that residence in some lot-ality is the sole test of the; right to be registered as an elector, and to vote in New Zealand ; and secondly, that the . legislature has endeavoured to ensure, so far as it has foreseen the multifarious conditions that may arise, that every adult resident in New Zealand, not specially dis franchised, should have facilities for obtaining the right to vote at elections It must be recognised, however, as it has been recognised by Electoral Courts in this (Dominion, and by Courts in the United Kingdom, that the term "residence" cannot be given an absolutely fixed meaning. Were it too narrowly defined, such definition would soon d-nflict with the second principle we have enunciated. The subject of residence was dealt with in the Taumaranui Election Case, 34 N.Z.L.R. 562 and we have no reason to comment on what was said by the Court which decided that case. The circunistances which go to pmve residence will . be found to vary according to the condi-

tions undei* whicli the inhabitants of a district are living, and it is especial- [ ly necessary to recognise a certain 1 amount iof elasticity in the term in a j newly settled country or district or in an area in which actual permanency of residence is not to be expected. Keeping in view these considerations, we come now to the questions put to us. Looking now at the first question, what we have to consider is tho application to the stated facts, of sevcial sections of the Legislature Act 1908 and its Amendments. We have to consider whether or not a given set of facts brings a person within the qualification' prescribed by section 35 of the Principal Act, and in doing so we have to further consider the bear ing of section 44 on his status in any disputed case. Section 35 at once affords an illustration of what we have already pointed 'out, viz: that the term ' ' residence must have a meaning varying according to the sense in which tho Legisilaiure has used it. The condition that and adult person must have resided for one year in New eZaland, does not imply that he has possessed a fixed abode there, while the condition, that he must have resided for one month in the Electoral District in whicH he cleams to be registered, implies that he has a residental address there. Sub-section (2), of section 35, preserves his right to retain his qualification in the district where he has his usual place of abode, against, the consequences of occasional absences. Those provisions, and others in the Act all bear on the question o± the ascertainment of the Electoral.District in which he resides. Moreover, the provision of section 36, that a mail shall not be entitled to be registered on more than one Electoral ,roll, facilitates the ascertainment of his residence, and appears to us to assist the ascertainment of the principle, that the Legislature desires everyone to have the opportunity of being registered. Up to a certain point in the history of the Dominion, the roll was taken to be conclusive as to the right of the person registered to vote, and this was declared to be the law in the Wakanui election case, I N.Z.L.R.S.C. 81. If the law had remained t]_e samo the questions we have co determine could not have been raised The alteration of the law is mow expressed in section 196 (f) of the Legislature Act 198, and this alteration was fully discussed, and dealt with, in the cases before the Full Court in the Hawkes Bay and other election petitions, 34 N.Z.L.R.409. The section on which

'the answer In the first question mainly turns', is sectiun 44 of the Principal Act. That section deals with the question, when a person is deemed to have left the district, and forfeited his qualification therein. It manifestly has reference to the duty of the Registrar under section 61 of the Aci lo remove from the Roll of the District, the name of every person proved •to his satisfaction to have left the District, and his name, remains on the roll, it is illegally retained on the Roll within the meaning of scctoin 196 ■(f), just as it would be illegally placed on the roll if he had obtained registration, when in fact- he did not reside in the District. Taumara.nui election petition 34 N.Z.L.R. 562. We think that section 44 when thus viewed, 'does not conflict with section 35, and wo have now to consider its application to the first question submitted. The person described in that question, is not assumed by the terms of the question to have finally, and definitely, abandoned the district. We h*«,ve to judge of his determination by his acts and to consider- what effect those acts have had upon his status. We think that the Legislature did not intend to deprive him of his right to resort to his original district, so long as he complies with what we find to be the ' conditions imposed by it. He has retained the apparent status derived from registration, and wo are not called upon to divine his intention, or absence of intention, in leaving that status unaltered. . Wtf think, therefore, that we are entitled to say, that he intended to retain the status, implied in the registration:,, and that ho thereby reserved to himself the right to "be entitled to vote," not by merely visiting the district* for the purpose of voting, \mt, by bona, fide residing in it , for the short period, separately, or continuously, ; which the Legislature has stated to be uhe condition. It appears to us, that the Legislature did not intend to encourage a man to hurry back and remain six days, and cast a vote in a district with which he no longer had any connection, but it did intend, that if for any honest reason he was found to have resided six days in that district the Registrar could not under section 61 summarily expunge his name from the roll, and he could, not be treated, when coming to tho polls a person whose name was illegally retained on the roll. This appears to us to have been designed to meet the case of a shifting population, and to a certain extent, to have given a man tlie right to retain i)he power to treat himself as still validly upon the original roll, despite the fact that he had a temporary residence in some o.'hcr district, or to exercise the option of applying for registration in a district, or to exercise the option of applying for registration in a dist-ic-in which he had resided for one month thei cby abandoning his original distric J. We have not overlooked Mr Hannan 's argument, based on sub-sec-tion 3of section 44. We doubt whether that sub-section was ever really necessary to preserve the qualification of a person who changed his residence within the district), by taking possibly, a new house next door to his oid one. It appears to us to be a piece of legislation enacted ex niaiori cautola and not dealing with an essential difficulty. The liberty which the subject has to elect,, after one month 's residence, to obtain registration in. a district to which he has removed, iiot implying the contemplation of permanent residence there, seems to us to carry with it the implication thai; he also has; the right, to the extent already indicated, to elect to remain on the roll of his original district,; and lawfully to vote there, provided he complies with the condition specified in subsection 2 of section 44 with regard to bona fide residence. This appears to us to be the answer to the first question. We have dealt with the case there put, of ah unmarried person. The second question deals wifch the case of, a married person, who resides in the new district with his family* while pursuing his occupation there. This does not appear t« .. s to bo a different case from mat of the unmarried person. Ifl may . afford stronger evidence, when the Registrar Comes to enquire, under section 61, whether such person has left the district, but obviously the strength of that evidence must depend on a'number, of circumstances, such as the size of his family, the distance of the removal, and the kind of personal interest he may happen! to have, in one district or the other. Primarily, however, the kind of option he has is the same kind of option as the unmarried person has,- and the bona fides of Ms brief residence in the original district

must be ascertained from all the circumstances available in evidence. In each case the question whether he has wandered into and tempora^Y^f in one district or several distiicts is a material factor but in answering as a a material ques tion put,' to us, tTwLatmaa claSn- that ta ta. class, wnen » "* , . ongma i res ided for S six day in^vs^ g tt "ptiod, and t\e circumstance that t may be broken up into six periods, nmke it clear that the Legislature intended to leave very much to the elecand fourth question are really only variants of those with which we hive already dealt. Mr HanTan has very properly admitted^ that in the case described in the fourth question, the person there referred to retains his right to .vote, provided he co^Ucswithsub-section 2 of section S We think,- as we have already said, that the persons described m the four! questions are legally speaking- all on the same footing. The person described in the fittn question is a person as to whom, when the facts are known, it is the duty a. the Registrar to act under section bl of the Act. In the supposed case, tne person cannot bo deemed to have resided in the district within the mean-, of sub-section 2 of section 35, as his absence is not an occasional absence, and he is not protected by the terms of section 44, which has) no application to his case. . The person described in the sixth section, does not appear to us, to be in a position to make the declaration embodied in the first paragraph o2 the form given in the Schedule of the Amending Act of 1914 N. 33. If ne cannot) truthfully make this aecinration,, he is not entitled to vote. On the description giyen, it is' apparent that he* cannot say that his name was on Uhe Electoral Roll, and was ruled out. He is met with the same difficulty in connection with the second alternative declaration, in the same form. He must* declare that he voted at the last election, and that he was enrolled as an elector of the electoral district. This means, not that he was enrolled at some remote period, but that he was enrolled at the date of the last election. As Vo the seventh question, Mr O'Regan admits, that if a person obtains a voting paper* in consequence of a false statement in his declaration, that vote must be disallowed. j With respect,' to the eighth question, a bona fide mistake would not deprive a person of his right, to vote. Tho Act appears to contemplate, that a person may be on the roll of what may be called his old district for an appreciable time after his name has been I put; on another roll, while he made i the mistake of thinking thai) the mere i fact of making his application, effects cd his removal. He may, for other i reasons, be under an erroneous belief [ that his. name is not on the other roll, ■ an.d_.may be tha* it ought to have been i removed. We think that this case must be differentiated from the case ; of a false declaration wilfully made, j We therefore answer the questions ) thus: In the first four cases the i answer is that the vote is valid. As 5 to" the sixth question, the answer is 5 that the vote is invalid. As fro the . seventh question, the answer is that F Jhe vote is invalid. As to the eighth i question, the answer depends on 5 WiietheH the voter has made a mistake. i or ii: has made a wilfully false decla.a---l tiqn.

,Mr. Hannan, counsel for petitioiipr after hearing the answers to the various issues, submitted by; counsel stated that the petitioner, as mentioned by him yesterday, in case of an adverse verdict, did not intend pursuing the action further. The bulk of the votes challenged by petitioner were covered by issues I and 2. and as their Honours' decision was clearly against the petitioner's contention, it was useless to take up the time of the Court. Doubtless the majority of Mr. Holland could bo greatly reduced; there were many cases of irregular votes and over '-ir cases of plural voting— (Mr. O'Rogau: Some of them were yours!") — but having failed on issues 1 and 2, the petitioner could not possibly hope to succeed. However, as the petitioner Had suificient ground on which to ask for the enquiry, he tnought thnt there should be no question of costs raised. Altogether there were over TOO irregular votes and the petitioner was therefore quite Justified in pmr^edtng witl. the petition. Hp wouM +herpfore ask that no costs bo allowed.

Mr. O'Ttegnf-i exnrpssed surnvise at + hfi inxietv of the other side to «scnr>e r>jivn-»eTi+- of rosf-*.. imsTminh as it was common knowledge that the question jof costs was of no moment, to them. jTt was the practice of the Supreme Court that, subiect always to tlio di?"retioT. of the Court, costs followed the event; and Ke submitted that the same practice should be followed in the Election Court. He had not considered the English authorities cited by Counsel for the petitioner, but he maintained that in each of the cases cited there were probably special circumstances, ln any Court, the matter was determined for .New Zealand by Section 204 of the Legislature Act, 1908, which gave the Court complete discretion in connection with the question of costs, ln this particular case, there were special reasons why costs snould be allowed. He himself, befor© leaving Wellington, had read inspired paragraphs in "thfe press to the effect that a hundred witnesses were to be called fop the petitioner; that special reporters were -being dispatched to take notes; that upwards of 300 votes were challenged, and so on; and naturally the respondent had prepared for a protracted sitting, at any rate fpr a fortnight's trial, and had interviewed and conferred with many witnesses, had briefed their evidence and had prepared supeanas, etc., As . for the irregularities, alleged, the respondent was in no sense responsible for these. Such irregularities occurred at every election, and should not Be considered in connection- with the question of costs;, and under the circumstances he felt assured their Honours would allow costs against the petitioner. Mr. Justice Chapman said that the Court could see no reason for disallowing costs. The respondent had been elected by a large majority, and he was not in any way responsible for the irregularities which made the case so difficult. Where there is a discretionary power vested in the Court, •it rests with the Court How that power should be exercised. In. this case, however, the question was fixed by 'the Act itself and was adopted by the Appeal Court in the Bay of Islands appeal case. The question of costs was therefore regulated by tbe Act itßelf and the matter would be referred to the Registrar to assess the costs.

For rrhilrlrpn'H HarKing. Congh at nieTit. Woods' Or«»nt Peppermint Ci.r«. 1/6. 2/6.