RESIDENT MAGISTRATE'S COURT, WAIPAWA,

Hawke's Bay Herald, Volume XX, Issue 3905, 23 April 1877, Page 2

RESIDENT MAGISTRATE'S COURT, WAIPAWA,

Saturday, April 20. (Before R. Beetham Esq., Resident Magistrate,) WAIPUKURAU ELECTION. This Avas an inquiry into a petition filed at the Resident Magistrate's Court, Napier, by H. R. Russell and tAvo electors of the Waipukurau Riding, in the County of WaipaAva, praying that the late election for the riding of Waipukurau be declared void. Mr Sheehan appeared for Mr Russell ; Mr Johnston conducted his own case. Mr Sheehan, before opening the case, said that, as he observed Mr Johnston Avas Avithout counsel, he Avas Avilling that the arguments should be decided in Napier. Mr Johnston said he had no desire to be heard by counsel. Mr Sheehan said that on the determination by the Court that the previous election Avas bad, it was directed that an election for an extraordinary vacancy should be held. It AA'as the case that certain irregularities had occurred at that election, which tended to defeat its fairness. The first irregularity which occurred was that the returning officer had issued a notice at tlie foot of the advertisement appointing the day for the poll, to the following effect : — ' ' The Chairman or other proper officer of eacli of the undernamed highway districts is requested to fonvard to tlie returning officer fortluvith a certified list of persons avlio are entitled for the time being to vote at a first election of a road board in his respective district, A r iz. : Waipukurau, Central RuataniAvha, and Makaretu." As a matter of laAv, no notice Avas necessary, but, being issued by the returning officer, it was an erroneous direction. The Waipukurau riding Avas made up of three road districts — Waipukurau, Makaretu, and RuataniAA'ha. The Waipukurau Road Board carried out the necessary requirements of the Act by preparing proper assessment lists ; the Ruataniwha district held its first meeting and elected its road board, but failed to levy a rate. [Mr Johnston said the evidence Avould slioav that RuataniAA'ha did levy a rate. ] A bogus roll Avas sent in by the RuataniAvha authorities, but it Avas not the roll of the RuataniAvha district, but of Central RuataniAvha, a district which had been abolished. As regarded Makaretu, it had been proclaimed to be a road district, but no subsequent action liad been taken. The proclamation by the Superintendent of the Makaretu district constituted it a road district under section 51 of the Counties Act. The Act distinctly stated that the votes of the ratepayers must be taken from the roll which is sent in to the returning officer. With reference to Ruataniwha, the evidence would disclose the fact that, although they had a road board, they had no legal rate roll. If the RuataniAvha and Makaretu districts Avere disfranchised it would be their oavh fault. On the day of tlie 1 election the returning officer held his post at Waipukurau, and appointed Mr Cowper as his deputy at Ashley-Clinton. Mr Aitoav's position avus a judicial one, but he appeared to have lacked firmness of mind as to deciding the points brought before him. The returning officer did not possess the functions of a revising officer ; he had no right to ask whether certain persons were on the roll, but to accept tlie roll sent to him ; the responsibility of the correctness of the roll did not rest with him. At Waipukurau MiArrow had his attention called to the fact that a rate roll giving cumulative votes was not a legal roll for tlie district, and that tlie parties could only exercise one vote. One or tAvo votes had then been taken on that system. Mr Aitoav admitted the force of the argument, and during the rest of the day all persons from Central Ruataniwha were allowed only one vote. At the close of the poll he reduced one or _avo votes that had boon previously given, from plural to single votes. Tlie votes from Central Ruataniwha Avere accepted, although that district had been abolished for some time, by Lhe Superintendent's proclamation. Mr Aitoav had instructed his deputy to receive cumulative A'otcs at RuataniAvha, whilo he himself Avas accepting single votes only, both places being similarly qualified. As a proof of lioav things were carried on at the election, lie believed that a proposal bad been made by one of the scrutineers to the efl'ect that 19 A'otes should be taken from the RuataniAvha ballot box and destroyed, so as to balance the votes at tlie other places. (Laughter.) Mr Sheehan then concluded a lengthy speech by saying he should ask the Court to hold that the election avus void on these A'arious grounds, hi the case of tlie RuataniAvha and Makaretu districts, as a mailer of fact they had not complied with the HigliAvays Act in regard to levying a rate. Tlie first Avitness he would call was Henry Aitoav, sworn, deposed ; I Avas returning officer for the Waipukurau riding. 1 attached to the advertisement in reference to tlie poll a private notice requiring a list of all persons entitled to A'ote at a first election of a road board. I conducted the Waipukurau election, and deputed Mr CoAvper to act as returning officer at Ashley-Clinton. I took my roll from the Central RuataniAvha roll, and gave Mi- Cowper an exact copy, Avith instructions to folloAV it. The roll contained tlio names oi* Hie electors in Uie Makaretu, as an outlying district, taken from the electoral roll. 1 specified on the roll the names of the electors and the number of A'otes thoy were entitled to "ivo. In compiling the lists 1 left out the names of those avlio had paid rates under I 0.-s. With reference to Makaretu, 1 took that as an outlying district, and I took the roll from that, Avhich comprised the names of all persons on the electoral who Avore entitled to vote. Mr Russell's scrutineer objected to the RuataniAvha votes on the ground that Central RuataniAvha Avas not in existence. After the

poll commenced I altered tho voting from cumulative voting to single voting, and < treated it as an outlying district. I took no other names but those '< on my oAvn roll. I think I refused all names not on my list. I treated i Central Ruataniwha as disfranchised. When nly attention waa called to it I wished to reject those votes altogether, : but the scrutineers objected to it. I inspected the ballot papers in presence of the scrutineers. I only altered one vote after the ballot closed, arid Mr Rhodes' vote. The Waipukurau votes were equal for the two candidates ; and at Ashley- I Cliritriii there were 30 votes recorded, 27 for Mr Johnston and 3. for Mr Russell. I ascertained from Mr CoAvper that he had accepted cumulative votes at AshleyClinton, but I did not alter those votes in any way. I notified the resiilt of the election to be — 78 for Mr Johnston) 54 for Mr Rnssellv The list Mr CoAVper had Avas an exact c'dpy of the one I had myself. I did not remove any names from the roll, but reduced the number of votes in three instances, three votes to one, on the ground that they paid rates under 10s. Cross-examined by Mr Johnston : I only altered the RuataniAvha roll by striking out all persons Avho had paid less than 10s rates. I had to do the best I could to obtain a roll. I treated Makaretu as an outlying district, because the necessary petition from five ratepayers to the Superintendent to form it into a road board hacl not been presented. The Superintendent had merely gazetted the boundaries, but the Act was not brought into force. On making up the roll I took the votes for the Central Ruataniwha as provided by the Counties Act for outlying districts. I refused some votes on the Waipukurau roll, because they were more than were alloAved by the provincial Act. Thomas Cowper, sworn, deposed : I was deputy-returning officer at the last election at Ashley - Clinton. In the Central RuataniAvha Colonel Herrick, MiBridge, and others, were alloAved to give more than one vote, in accordance with instructions from the returning officer. All persons Avhose names were on the RuataniAvha list with cumulative votes were taken without objection. One voter, whose name was John Hobin, and Asdio appeared on the Waipukurau list as " Obin," Mr Russell said was entitled to vote, and I took his vote for a qualification at Makaretu. I refused no votes. Every person avlio came, and who was on the list, AA'as allowed to vote. I handed in the ballot papers on the follewing morning. I allowed Foulger to vote ; Mr Russell's scrutineer said he should vote, and he did vote. I think he was on the electoral roll for Makaretu. William C. Smith, sworn, deposed : I acted as scrutineer for Mr Russell at the last Waipukurau election. The e-vidence given by Mr Aitoav is substantially correct, with a feAv alterations. Before the poll commenced, I objected to the Central Ruataniwha roll being taken, as the district was not in existence. Mr Arrow said he could not act on the objection then. On the Waipukurau roll he altered the number of \ r otes of three ratepayers. After two votes had been taken on the Central RuataniAvha roll he said he could not tliroAv out the old roll, but he would alter the Avhole of the roll from two to one vote. He then said he Avould treat it as an outlying district, and allow every person to vote on the RuataniAvha and on Colonel Herrick's roll who paid over 10s rates. One person, Donald M'Leod, applied to vote as being on the Ruataniwha roll ; he said he paid 17s, but he was less than 10s on the Ruataniwha roll, and Avas refused. He then said he AA r as an elector for the General Assembly, but he Avas told that as he Avas rated under 10s he could not vote. Mr Rathbone had been allowed to vote on the Central Ruataniwha before the conclusion was come to that it Avas an outlying district. Mr Ferguson applied, on tAvo or three occasions, to vote as having property in the Makaretu district liable to be rated, and could haA r e A'oted at the first road board meeting, but he Avas not allowed to vote. Mr Rhodes Avas on the Central Ruataniwha roll for two votes, but his name was altered to one. Before the close of the poll Mr Johnston's scrutineer suggested that, as Colonel Herrick and Mr Bridge had not voted as they ought to have done, 19 votes should be taken out of the ballotbox and destroyed, but the suggestion Avas not carried out. Jasper Lucas Herrick, sworn, deposed : I am chairman of the Ruataniwha highway district. I gave evidence on the last occasion of the petition against Mr Johnston's election. The Central Ruataniwha district has been abolished and a neAv district appointed in its stead. The first meeting was held, at whicli I was appointed chairman ; at that meeting it was agreed to strike a rate, and lists were made out by the secretary of the names of persons liable and the amounts they had to pay ; it was also put and carried that a rate of 3d in the pound on the annual rental value be levied. No regular list Avas made out, but we adopted a list of the old district. That list did not contain the names of all persons liable to be rated. I did not subjoin at tlie foot of the list a notification when and where the board would hear and determine objections to rates. I forwarded a copy of the list to the Provincial Government for insertion in tlie Gazette. The reason I did not notify the time and place for hearing objections, was that I kneAv tliere Avould be no objections. I adopted the list and acted on it, but did not sign it. Mr Newman had a list, which ratepayers could have inspected. That is all that has been done in reference to the list since last enquiry. There were some additions made to the list, but no alteration in the value of the assessments. I sent Mr Arrow, incorrectly, I suppose, a list purporting to be the Central Ruataniwha one. All notifications from (Wellington are addressed to nic as chairman of the Central RuataniAvha Board. No valuation has been made for the new district ; we merely adopted the previous one. I admit Aye have made some omissions in not preparing a list and in not giving notice Avhen objections would be heard. We prepared the list in the same manner as is done by most of the other road boards. It Avas a copy of the list as sent by the auditor. In my opinion it was a correct list of all persons entitled to vote at road board elections. Cross-examined by Mr Johnston : I sent the Ruataniwha valuation list to the returning officer in compliance with his request. The list contains the names of all persons entitled to vote at the present time. Mr Johnston quoted clause 4 of the Counties Act to show that an outlying district meant any part of a county whicli is not included in a road district ; the meaning of a road district was any road, highway, or other district within the jurisdiction of a road board. Tliere Avas never any road board appointed for the Makaretu district. Clause sof the Highways Act Avas to the effect that the Superintendent may, on the requisition of five voters, by notification in the Gazette, bring the Act into operation in any district, but this had not been done. It was clear that the Provincial Highways Act was not in force in the Makaretu district, therefore Makaretu was not within the jurisdiction of the road board. Mr Shoehan then, aftor some further remarks, recalled Mr Arrow to ask him two questions. The first was in reference to the proposal to destroy the 19 votes, as stated in Mr Smith's evidence. Mr Aitoav said tho Avhole thing was only a joke, and it was not for a moment contemplated to do anything so absurd. The next question was whether Mr Aitoav did not make the samo proposal to Mr Russell the day after the election, to which Mr Aitoav replied that Avliat he said AA r as, if it Avas in his poAvor to do so he would strike off the ] Avhole of the Ruataniwha A'otes, because he considered the list Avas not a correct J one. ]

Mr Sheehan having then addressed the i Court on the evidence, j His Worship said he would adjourn the . case f6r a week, and give his decision in Napier. . He remarked that he deeply '. sympathised Avith the returning officer for the onerous position he had been placed I in. The action of the scrutineers was sufficient to disturb all his self-possession, and such conduct should have been most carefully avoided. , . The proceedings, tlieii terminated. Considerable interest was taken in the case during its hearing, a large number of persons being present.