PETITION AGAINST MR. LANE.

Hawke's Bay Tribune, Volume III, Issue 145, 4 June 1913, Page 5

PETITION AGAINST MR. LANE.

DISMISSED WITH COSTS. HASTINGS MEMBER RETAINS HIS SEAT. AN INTERESTING JUDGMENT. At the Hastings Magistrate’s Court this morning, Mr. S. E. Me Carthy. S.M.. delivered his decision in the petition against the election of Mr. Eustace Lane as represents tive of the Borough of Hastings on the Napier Harbour Board . In the course of his judgment. Mr. McCarthy said : —"The petition was heard at Hastings, within the Hast ings Borough Council District, an the 21th May. 1913. when judgment was reserved and is now given as follows:--

This is a petition filed pursuant to •’The Local Elections and Polls Act. 1903." and its amendment of 1911. praying that the eletcion ot Mr. Eustace Lane to a seat on the Na pier Harbotii Board, as representative of the Hastings Borough Coun eil District of the Napier Harbour Board Distiict might be declared void.

The petitioners rely on the following grounds, namely : —

(a) That Mr. Lane was not. eligible for a seat on the board as represen tat me of the Hastings Borough Council District ;

(1>! That the Returning Officer failed to recount the toting papers handed him by his deputies : (e) That the Returning Officer, m giting the public notice required bySection 7 of "The Local Elections and Polls and Act. 1908,” failed to appoint a day not more than seven days (exclusive of the day of election) before the day fixed for the nomination of candidates ;

(d) That informal t otes which affected the result of hte poll were counted in favour of Mr. Lane. Mr. Lane filed a notice of intention to oppose, and his counsel contended the Magistrate had no jurisdiction to hear and determine such of ,the matters alleged in the petition as affected the nominations, the jurisdiction of the Magistrate being .so it was contended, limited to enquiring into the election. Now.

"election’ ’is defined by "The Local Elections and Polls Act, 1908.” as meaning "election to any office in. under, or in connection with any local authority required by law to be filled by the election of tiie elec tors, ratepayers, or other constituency of any district.’’ "The Muni cipal Corporations Act. 1908’’ le fines an "election” as moaning an election under that Act. Both the "Harbours Amendment Act. 1910,” and ’“The Municipal Corporations Act, 1903.” incorporated the provis ions of "The Local Elections and. Polls Art.” 1903.”' (See section 6 jf i .he Harbours Amendment Acr. [ il’10,” and section 17 of “The Muni- ‘ cipal Corporations Act, 1908.”) Seeing that there can be no electron without tt prior nomination, the nomination is an integral part < f the election. The result is that the ! va’idicy of the nomination, equally with that of the election itself, can be inquired into by the Magistrate. It would be a strange result if the Magistrate’s jurisdiction were con fined to what took place on the day of the election and the Supreme Court had exclusive jurisdiction as to the nomination. The object ■.! the Statute is to create a cheap and expeditious tribunal to .decide all matters relating to local elections To uphold the respondent’s conten tion would be to create a circuitous and expensive method of settling ill disputes relating to such elections. The objections marked ("b” and ("d”) were abandoned. The facts are briefly these, that on the 16th day of March last the Borough Council of Hastings appointed Mr. Thomas Morgan as lieturning Officer to conduct certain local elcetionr. to be held on the 30th April then ensuing. The object of one of these elections was to choose a member of the Napier Harbour Board to represent the Hastings Borough Council District, being one of the subdivisions of that Harbour District. The Returning Officer, on the 2nd April 1913. gave public notice of the cleet-ion notifying that nominations would be received up to noon of the 22nd April ami that- the ejection would take place on the 30th April. I'p to the hour fixed for the receipt of nomiii.ttions the only roll of elector.; in existence was that used for the general Election of Councillors held in the year 191 1. Mr. Lane’s name was on that roll on that day. although he had m-t voted at the 'previous election. Somewhere about the 12th April a new roll was issued by the Town Clerk of the Borough of Hastings. Mr. Lane's name was on that roll, it having been 'omitted therefrom because he had net voted at the previous election. V,'itiiiit a day; or two at the outside, of the issue of the new roll Mr. Lane noticed his name not recorded thereon and waited on the Town Clerk and having satisfied the lattes- he possessed the necessary qualification, the Clerk promised to put him on the Supplementary Roll then being prepared. This occurred before the 14th day preeeeding the 30th April. Tire Clerk failed to put Mr. Lane's name on the roll. Mr. Lane made no written claim for enrolment till the 3, rd day of April. There was no proof of any extension of time for compiling or completing the rolls by Order in Council pursuant to Section 368 of the principal Municipal Corporations Act. or of what were the divergencies, if any. between the rolls of 1911 and 1913, except that Mr. Lane’s name was nut on the latter roll. The roll used al tb.e election sought to be voided was that completed after the 12th April. Mr. Lane was returned by a large majority. There are three questions for decision (it Di*! the Returning Officer rightly fix the day of nomination ;2) Assuming he did not. 'lid the; a fie ct <he icsitlt of tiie election’ M.?' '■»: eligible for '-*•** tlnn tn a -f.'* '■■n ‘-lip board ;v. representative nf the Hastings pnrni|"l) ( ’! Dt -1i i' I

Taking these points in their order. I am of the opinion that, the day of nomination was rightly fixed. All the cases as to computation of time are collected in the judgment of Chitty J. in re Railway Sleepers Supply Company (L.R. 29 Chut?. Div. (1835) page 20). He there quotes, with approval, the dictum of Sir William Grant in I.ester \. Garland (15 Vesey 257). that "in genera! our law rejects fractions of days more generality lhai the civil Law does. The effect is to render the day a son. of indivisible point, so that any act done in the compass of it is no more referable to any one than to any other portion of it ; but the act and the day are coextensive and therefore the act cannot properly be said to have passed until the day is passed.” Notwithstanding the mention of clear days in the earlier part of Section 7 of ’’The Local Elections and Polls Act. 1903,” and the express exclusion of the day of election, the day of nomination must, in computing "the not more than 7 days” provided for in that section, be excluded from that period of time, as well as the day of election. Such a construction extends, that contended for. limits the time during which nominations may lawfully be received. There cannot be a doubt as to which is the more beneficial. See also Section 8 of "The Acts Interpretation Amendment Act, 190 S”).

Even assuming, however, this is not so, it was expressly provided that no more candidates other than the four nominated presented themselves for nomination at any time during the progress of the election. It cannot, therefore, be said, assuming an informality, that the result of the election has been materially affected.

With regard to the last point set for decision, section 16 of "the Harbours Amendment Act, 1910,” provides that "no person shall be capable of being elected as a member of the board unless that person is entitled to vote at an election of a member of the board.” The board is constituted by section 4 ci "the Ha’-bcin-- Amendment Act. 1910.’ and the schedule thereto, the joint effect of which is (inter aha) that the electors of the borough of Hastings return one member. By "the Harbours Act. 190 b.” (Consolidated Statutes) the term ‘-electors’ is defined to be “lhe persons tor the time being entitled to iote “at the election of members of the local authority as defined by that Act.” The term "local authority” is defined to include (inter alia) a Borough Council. We are thus, for the purposes of the petition, thrown for a definition of the term ‘'electors” on to "the Municipal Corporations Act, 1908.” (Consolidate!.! Statutes), where in it is defined to mean ‘-persons qualified to vote at any elections under that Act.” The completion of the roll of electors under that Act; is provided for by sections 6 to 16 thereof (inclusive). The main roll is to he made up by the Town Clerk on or before the 15th February- of the year of the general election of the council. Provisions are made for compiling the supplementary rolls and for appeals from the council to the Magistrate. No appeal to a Magistrate can be lodged inter than the 22nd March, and the appeal must be heard not later than the 30th of the same month. (See regulation No. 13. New Zealand Gazette, 1911, volume 1. page 636), whilst the main roll must be completed not later than the Ist April. (See regulation 11). The roll must be finally closed "at 5 o’clock in the afternoon of the 14th day proceeding the day appointed for the election .and shall be kept closed, subject to the provisions as to appeal to the Magistrate, until the election is completed.’ Regulation 6 of those made in 1911 provides for the omission from the new roll of all persons possessing merely residential qualifications, who nut having been candidates al the previous general election of councillors, failed to vote thereat. Regulation 17 provides that if. D.-oin any cause whatever, ‘‘the district electors’ roll is not. made out and completed so as to cotne into force at the prescribed time.” namely the Ist April, the roll to doe used at the then ensuing election shall, apart frc-ni any extension under section 368 previously cited, be the roll in forces at the preceding election. It thus anpears tba.t the roll used at the .-lection now under review was an invalid i oil. m t Imt it was not completed I the Ist .April, lhe only roll which could Lawfully have been u.-wd at ihe election sought to be voided was that on which Air. Lane's name appeared. He was therefore not only qualified for nomination, but also to vote at the election. The mere tact that the Town Clek failed to strike his name off is immaterial. The provisions ot regulation 6 relate, not to striking off the eld roll, but to omitting from the new roll, which, however, as we have seen, was not completed within the prescribed time. What. then, is the position as to the election having been conducted under an invalid roll ? No allegation to that effect is contained in the petition r.ncl there is no proof before me as to any divergencies, but one, between the two rolls. How. then, can I si.y the use of the invalid roll has materially affected the result of the election Mr. Lane polled 525 more votes than the next highest candidate, and it is sought to upset his election by mere technicalities. The courts will not lightly upset an election by reason of the irregularities of electoral -officers, for which the successful candidate and the electors were in no way responsible, ami at which neither he nor they have, in any sense of the word, connived. In my opinion the petition should be dismissed, and it is dismissed accordingly with costs against the pet it inner l -. Mr. Dulin appeared fc:' the petitioners, Mr. D. Seannell for Mr. Lane, and Mr. E. 11. Williams re-proent-d the Hastings Borough I enm-ii. The pctiti/’iicr. were < .:-d<'r pi l to par M’’. Lane’;, solicitor’s tee. £5 5 . and cc-P- ot aflvertising the petii ion.