RESIDENT MAGISTRATE'S COURT WAIPAWA.

Hawke's Bay Herald, Volume XX, Issue 3824, 17 January 1877, Page 2

RESIDENT MAGISTRATE'S COURT WAIPAWA.

Tuesday, January 16. (Before B. Beetham, Esq., B. AT.) THE WAIPTXKUBAU ELECTION. This was an inquiry into the matter of the petition- of Henry Russell and others against the^el&stibn of Sydney Johnston for the Waipukurau Riding of the Waipawa County. The following is the text of the paiition:—- --" We, the undersigned electors qf the Riding of Waipukurau in the County of Waipawa, do hereby declare that we verily believe that at the election to the office of councillor of the said riding s holden at Waipukurau and Ashley-Clinton on the 22nd day of December, 1876, at which Sydney Johnston was declared to be duty elected to the said office, the said election is wholly void upon the following grounds :— (1) That the poll at Waipukurau was not open within the hours required by the Regulation of Local Elections Act. (2) That other irregularities occurred in the proceedings at Waipukurau and Ashley-Clinton aforesaid, tending to defeat the fairness of the said election, to wit — (a) The returning officer refused to accept the votes of a number of duly qualified voters. {&) That the returning officer allowed and received cumulative votes in the cases of a large number of persons claiming to be qualified to vote cumulatively under the provisions of the first sub-section of the fifty-first clause of

the said Counties Act, whereas cumulative votes at the said election were not authorised by the provisions of the said Act. (c) That the returning officers allowed and received the votes of a number of persons claiming to be qualified to vote as ia the last preceding paragraph mentioned for the highway district of Central Ruataniwha, although such persons were not duly qualified to vote under the provisions of the said first sub-section of the said fifty -first clause of the Counties Act. (d) That the returning officers, while allowing a number of persona to give cumulative votes according to the scale set forth in the said Counties Act, yet refused to allow other persons to vote upon the ground that they did not pay rates to the amount of ten shillings, as required by the provisions of the fortyfifth section of an Act of the Provincial Council of the province of Hawke's Bay, intituled ' The Highways Act, 1871.' " And we further declare that we believe the election of the said Sydney Johnston is void upon the following grounds : (1.) That a number of persons voted at the said election who were not entitled to vote thereat. (2.) That a number of persons gave more votes at the said election than than by law they were entitled to give thereat. "And we pray that enquiry may be made into the said election, under the provisions of the said Regulations of Local Elections Act, 1876, and that the said election may be declared to be wholly void, or that the election of the said Sydney Johnston may be declared void." Mr. Sheehan was for the petitioner, and Mr. Lee for the respondent. It was decided, in consequence of

Mr. Lee having missed the train, and the respondent being therefore without professional assistance, that the proceedings at Waipawa should be confined to taking evidence, and that the argument upon the law of the case should be taken at Napier. Mr. Sheehan having briefly addressed the Court upon the facts he proposed to prove, Frederick Howe Drower gave evidence to the effect that at the election for the Waipukurau riding he was the returning officer. There was also a polling place at Ashley-Clinton. Mr. Morton was witness's deputy there. Witness allowed cumulative voting. Witness refused the votes of persons claiming to vote for a road district whose rates did not amount to 10s. Witness had an assessment list which he received from the Chairman of the Waipukurau Eoad Board, Mr. H. Russell, and from that list witness made out an electoral roll. A man named By an tendered to vote, and though he was on the list given i by the Chairman of the Eoad Board, witness was in doubt as to whether he (Ryan) was qualified to vote. Witness told <the persons in the polling booth that he would want to retire in order to ascertain about Ryan 1 . Witness then left the booth.but the polling clerk remained. Witness did not close the poll, but he certainly did not intend anyone, to take votes in his absence, and practically the poll was closed during: the five or six. minutes that witness was away. As a. matter of fact, however, no person tendered a vote during that period. '. During lunch time witness remained on the ground, but allowed the polling clerk and the scrutineers to go to lunch. Witness closed the door, but remained on the ground to have a chat with any persons that might come, so as to keep them waiting until the scrutineers came back, as a matter of fair play. . Witness " considered that the poll was not closed, as he was there. No one came to vote during the time. Witness refused the vote of Rabone, notwithstanding that it was on the certified list of the Chairman of the Road Board, the reason being that the name was new to witness, and that the occupier of the property, whom witness had known, was a man named Dickens. William Smith, who bad acted as scrutineer for Mr. Russell at r the election, deposed that when Mr. Drower was in doubt about Ryan's vote he used the words, "I will close the poll for a quarter of an hour." He thep told Ryan to go away. Mr. Ryan left the polling booth, and so did witness. At lunch time Mr. Drower said he would close the poll for half an hour. He then locked the place, and witness jwent away. Witness told all persons ,he met that the poll was closed for half an hour. In some instances when Mr. Drower refused votes he gave bis reasons, but in others he merely said, " I haven't yon on my roll/ meaning the roll he had made out himself from the assessmsrit ■list. From time to time Mr. Drower added fresh names to his roll. Evidence was then taken to show that there waa no legally constituted assessment list for the Ruatanrwhaßoad Board district. Colonel Herrick, Chairman of the Road Board of the Ruataniwha district, gave evidence to the effect that the old district having been abolished, a new one was formed. A meeting of ratepayers was held, at which a board was appointed and a rate was struck. No ratepayers' list was made out, but the officers availed themselves of the old list. In the new district there were properties that were not included in the old district. James Newman deposed that he acted as collector for the Ruataniwha district. Witness made out a list of ratepayers for the new district in a book. Made it out from the old list, but not having the acreage of the new names, he could not put down the amount of rates payable by those persons. Witness put up a notice in his store that the list was open for inspection at the public room Onga Onga. The list meant was the one contained in the book. Witness supplied a copy of the list to Mr. Harding for the purpose of the election. Charles Morton deposed that he acted as deputy returning officer at AshleyClinton. Witness allowed cumulative voting. Witness allowed the votes according to a list supplied by Mr. Drower of persons who be" considered were entitled to vote. Witness had no copy of an assessment ' list. There was one person, Edward Fulger, whose vote was taken although he did not pay 10s rates. His vote was taken because his name was on the list supplied by Mr. Drower. Denis Ryan, John Bovard, and E. Rabone gave corroborative evidence as to what took place at the Waipukurau polling place. Henry-Russell, chairman of the Waipukurau Road Board, deposed that Edward Fulger was rated for 8s 9d. The list produced was the assessment list passed by the board and signed by witness. Gave a certified copy of it to the returning officer. At this point the Court adjourned for half-an-hour, and, Mr. Lee having arrived in the interval, the following evidence was taken on the Court resuming : — Mr. Drower, recalled : I received two telegrams from Mr. Cooper, the Undersecretary, with respect to the election. They are with the voting and other papers. There was, I believe, a majority of 23 for Mr. Johnson. W. Bridge deposed that he was a warden of the Ruataniwha Road Board. The old list was accepted as the list for the new district. There were three new ratepayers introduced. Witness was one of them, at a rental of £1000 a-year. His Worship said he would give his decision on Monday next, and would take the law arguments at Napier on any day in the course of the week that would be agreed upon by the counsel engaged in the case.