RESIDENT MAGISTRATE'S COURT.

Hawke's Bay Herald, Volume XX, Issue 3828, 22 January 1877, Page 2

RESIDENT MAGISTRATE'S COURT.

SatuBDAY, JANUABY 20. , ; (Befpre R, Beetham, Esq.,R.&r.) , ; ' DRUNKENNESS. 1 A triplet, of drunkards — John Leary, i James Clark and John — were each •'_ fined ss. .. ' . : ; .... >.; : INDECENT EXPOSURE. John Hempenstall was charged with having committed aa indecency in a public place. It appeared from the statement of- the apprehending constable that on Friday the prisoner had. stripped ..himself, and had gone into the Iron Pot to bathe while people were about. ,•'■ ■■■.■• The prisoner said 'he was a stranger to the place and was not aware he was doing wrong. Fined 20s: with .the alternative of 24 hours'. imprisonment. ,- ■ BREACH OF MUNICIPAL BYE-LAW. George Hobbs was charged, on information, with a breach of a bye-law of a bye-law of the municipality in refusing to move away the carriage he was driving when he conveniently could, so as to make room for other carriages. On the application of Mr Lascelles, who appeared for the defendant, the case was postponed to Friday next. THE WAIPUKUBAU ELECTION. Mr Sheehan, for the petitioners, commenced the argument in this case. He said that he should address the Court very shortly,as the legal aspect of the case had been so recently argued before his Worship by Mr Cornford in the matter of the Clive election. Those ,arguments had been settled between Mr Cornfbrd and himself (Mr Sheehan) and he was convinced that they were sound and good in law. Mr Sheehan then referred to each of the points mentioned in the petition. With respect to plural voting he submitted that the whole scope of the County Act went to support the view taken by Mr. Cornford,. that plural voting was to be allowed only after the first electionv At the inauguration of constitutional changes all persons were equal in the eye of the law, and therefore no one was entitled to more than one voice. Indeed, it was manifestly unfair that at the inauguration of a system the outlying districts should be outvoted, perhaps by a small road district, by the plurality of votes the individuals in the latter could give ; if the legislature had intended to give such a privilege it would have said so in express terms. This objection, of course, applied equally to the Waipukurau as to the Clive election, but there were several other points in which they differed, and one of them was the closing of the poll at Waipukurau — once for a quarter of an hour, while the returning officer went to ascertain about a vote, and then again for half an hour during lunch time. He (Mr. Sheehan) maintained that it was not necessary to constitute a closing of the poll that votes should have been tendered ; a declaration by the returning officer that the poll was closed was a closing within the meaning of the Act. Another objection in which the present case differed from that of Clive ,was as to the Buataniwha district. There could be ho doubt that there was no assessment list for that district, and yet the voters voted there on qualifications as ratepayers, and gave cumulative votes ; which in their case was a double impropriety, as even supposing that they would have had plural votes if there had been an assessment list, still, as there was no such list, they were certainly wrong in giving more than one vote. His Worship : I hold that cumulative voting should not have been allowed at all. Mr. Sheehan said, as far as the Road District of Ruataniwha was concerned, it having no assessment list, it became an outlying district, and the qualification .•should have been the electoral roll. That being so, an irregularity had occurred. Auother point was the rejection by the retfurning officer of the votes of persons who did not pay 10g rates. The returning officer had thus allowed cumulative voting, according, to the Counties Act, and had then gone to the Highways Act of the Province for the qualification. But even so, it was more than questionable whether the returning officer was justified in rejecting the votes of a person who paid, less than 10s rates. On that point the Bth section of the Highways Act was in direct conflict with the 45th section, and, in such a case, the Court would give the preference to the clause conferring the vote, rather than to the one restricting it, more particularly as the restriction was only by implication.- There was also this circumstance, that, while votes of the kind were refused at Waipukurau, one such vote was allowed at Ashley-Clinton —that of Edward Fulger. Mr. Sheehan concluded with the remark that the prayer of the petition was that either the election 'should be declared void, or the election of Sydney Johuston be so declared, or that a scrutiny be ordered; of those three courses all the facts and all the law tended in one direction — the invalidation of the election. There was some argumeUt on a point raised by his Worship, as to whether the proceedings could be taken on a petition which was not in accordance with the schedule of the Act. Mr. Sheehan and Mr. Cornford argued that the proceedings were quite regular, as it was always customary to vary from tlie forms given on schedules to Acts, as : tlie circumstance of a case might require. Mr. Lee, for the respondent, addressed himself first to the point as to the form \ : oi: the petition, maintaining th.at the Act directed that a certain thing should be i done in a certain way, and if it was nof, tlien, of course, the proceedings were vitiated. There could be no hardship in ! ] so ruling, as the respondent was brought . ] to the Court, because of some things i < having been done informally, and surely <

it would not be right to allow the petitioners to commence with an informal petition. Mr. Lee then touched upon the several points raised by Mr. Sheehan. With respect to the plural yoting, he maintained that it was quite in keeping with the terms of the County Act. The 41st clause defined what was a county elector and how many votes he should have, while the 51st clause, which provided for first elections, enacted that every person who is entitled to vote at a road board election should be deemed to be a county elector. That gave the county elector the right to vote at a first election for a county, just as he would vote at a road board election. There was nothing to limit the right. As to the' objection to closing the poll, the question arose, was^ it closed ? It could not be expected that the returning officer would remain in the room without moving from it from nine in the morning until six in the evening. Therefore, if it was allowable for the returning officer to leave the room fofr a^ew minutes for some purpose of necessity, without its being deemed that, the poll was closed, why should he not be allowed to do so for some purpose which he deems a necessity? Then. the question ..arose, what is time?.. The, law directed that the poll snbuld be Jcept.. open between certain hours, but^was it tp ba by, Wellington timej, ChfisJ,^hurjsli time, or what ? As to the closing^at^liuici^iijn'e.'iihere was no actual closing,' because the returning officer was outside, and no one came to vote. Was it such as tended to defeat the fairness of >, the [election? Was it an irregularity P \ ■_ -,His Worship said that when the returning officer left the polling place in the morning there could be no doubt that one vote was refused. It was certainly allowed subsequently, but for the time that vote was refused and the poll was closed to that voter. Mr Lee, in continuation, contended that the evidence of Mr Bridge showed that there was an assessment list at Ruataniwha. The board adopted the old list, and had a notice put up to persons who might choose to object to it, and that being so there was an assessment list for Ruataniwha. With respect to refusing the votes of persons who paid less than 10s rates, the returning officer was quite right, because the 6th section of the Highways Act prescribed 10s as the minimum qualification of a voter at a first election, and the 51st clause of the Counties Act gave the franchise in road board districts to persons entitled to vote at road board elections. Of course, that being so, Mr Fulger's vote would have to come off, Mr Sheeban having replied, His Worship said that he would give his decision on Wednesday next. There was no other business before the Court. : ' • . ■