CITY SOUTH LICENSING ELECTION PETITIONS.

New Zealand Herald, Volume XXIII, Issue 7593, 24 March 1886, Page 3

CITY SOUTH LICENSING ELECTION PETITIONS.

Mr. E. G. Setii Smith, R.M., sat ia the K.M. Court to hear the petitions lodged regarding the election of a Licensing Committee for City South. The first petition lodged, was that of Geo. Rhodes and others against the election of Messrs. Harper, Anderson, and Winks, on the grounds that persons not entitled to vote had voted at the election, and that others had exercised a greater number of votes than they were entitled to. Iα this case Mr. Button and Mr. Theo. Cooper appeared for the petitioners, and Mr. Laichley and Mr. Cotter for the respondents. Mr. Button said that, as he had informed His Worship on the previous day, an understanding had been arrived at by the members of the profession engaged in these petitions as to the moet convenient way of hearing them, and they all agreed that the No. 1 petition should be allowed to stand over until certain arguments wore taken on the other (No. 2) petition, and this course might relieve the Court from having to go into the No. 1 petition at all. The points were, first, whether it was competent for the petitioners in the second petition to withdraw their potition ; and second, if there was no power to withdraw the petition, whether any one, other than the petitioners, had the right to give evidenco at an inquiry in tho absence of any evidence being given by the petitioners? There was another arrangement of which he had informed the Court, but upon consideration the other eido said they could not agree, as they did not appear for all the petitioners, so they would take the first and second points. Those questions would be argued to-day, and it was agreed that tho No. 1 petition sliuuld be postponed uutil some day to bo tixod by tho Court.

The second petition was then called. It was on the following grounds :—l. That tho name of a candidate, to wit, one James Clare, was omitted from the polling papers. 2. That tho name of a person not a candidate, to wit, James Clark, was entered upon the polling papers. 3. That an irregularity occurred in the proceedings, to wifc, tun entry upon several of the polling papers of a name, James Clark, and the omission therefrom of a name, James Clare, and the subsequent deletion of the name James Clark, and the insertion of the name James Clare thereon, which tended to defeat the fairness of tho election. 4. That the nomination of the candidates, Charles Goyder Hill and James William Oarr, wero not given within the time or in the manner required by the Hegulation of Local Electioua Act, 1876. 5. That the persons signing the nominations of the candidates, Charles Goyder Hill and James William Cair, were cot entitled to sign. And they prayed that inquiry may bo made into the said election under the provieious of the Regulation of Local Elections Act, and that the said election of the said Jas. W. Carr and C. G. Hiil may be declared to be void. It was signed by WinLain:; MalcomsoD, and six other electors. After Mr. Button had conceded to tho other side, Messrs. Laishley and Cotter, who appeared for the petitioners, tho right to commence, Mr. Laishley addressed the Court on the two points: first, as to whether they could withdraw their petition, and if not, whether the respondents, could insist on proceeding and giving e?idence in support of the petition, if the petitioners declined to offer any evidence. He quoted tho 4Sth section of the Regulation of Local Elections Act, the section in dispute. This, he pointed out, only provided that two classes were entitled to tile a petition : first, a candidate who felt aggrieved may with two other eleotors petition, or any six eleotors may petition. The 43th section waa framed to provide a remedy so that it appeared that there was no power under the Act for a mere informer or outsider to petition against the validity of an election, nor for tho Resident Magistrate of his own motion to take action. He submitted that it was olear that the petition should be conducted by those who had filed it. The carriage of the petition was, he submitted, clearly with those who had filed it. In support of this he quoted the 55th section, which gave power to the Resident Magistrates to order the expenses of the inquiry. He had no power to order that any ward, municipality, or parish should bear those expenses, only the parties petitioning or petitioned against, showing that it was a personal matter. That was the first point he should make in regard to the power to withdraw the petition. The second point was as to the consequences if the petitioner was not allowed to withdraw. Uβ might, after having filed the petition discover that it was unfounded, or scandalous, and it would be simply monstrous under such circumstances that he should not have the power to withdraw it. The second branch of the subject would be that even if the Rfsident Magistrate might be forced to hear a petition which the petitioner a3knowledged to be unfounded, it might injariously affect innocent third parties interested, and so he pressed that absurd and unjust consequences would follow if it was held that a petition could not be withdrawn. He would refer to the law as it stood prior to this enactment. It waa contained in the statute 28, Geo, 111., passed in 1786. Before that statute was passed there was no statntory enaotment bearing on the withdrawal of petitions, but he had discovered one case before that statute came into force, the Bedfordshire case, which was decided on June 7, 1754. That was decided in the absence of legislative enactment, and that petition was allowed to be withdrawn. Then the 28t;h of Geo. 111. was enacted, and from that time until the enactment of the statute of 18S0, provision bad been made for the withdrawal of petitions, that is to say, on what terms petitions might be withdrawn. Thus the 31st and 32ud of Victoria showed under what circumstances petitions might be withdrawn in Kngland, and the New Zealand Elections Petitions Statute Act, 1880, section 22, showed under what circumstances election petitions can be withdrawn in the colony, and in each intermediate Act there was some similar provieion fixing cettain conditions on which petitions might be withdrawn—-ergo, petitions could be withdrawn—and these enactments showed that there waa an inherent right to withdraw a petition except under certain statutory conditions, and he nrged that the absence of any enactment in this Act showed a petition might be withdrawn without conditions. A somewhat analogous etate of things existed in tho K.M. Act, in which express power is given to the Court to deal with a defendant's case in his absence. Here it was thought absolutely necessary to give the Court power to deal with the defendant's case when hedidnot appear, and he therefore urged that in the absence of any legislative enactment in the Keguiation of Local Elections Act, it was clear that the power of withdrawal should be left inherent to the petitioners. In regard to the eecond point, he contended that it would not be compotent for the respondent to come into Court and urge that because of bis own laches the election should be declared void, and prove his own wrong and infamy. He did not say there was anything wrong or unfair in this case, but there might be, say, a case of bribery, and could the member, in such case, .claim to take advantage of his own wrong. This he argued, would also take away all discretionary power from the Judge. What the other side contended was that the Judge had no discretion, and must hear the inquiry. The third point was that grave wrong might occur to innocent third parties if the respondents could insist on going on with the petition, and propagating allegations whioh were admitted to be unfounded and scandalous. In the first place, therefore, he contended that the petitioners had power to withdraw their petition, and in the second place, that the carriage of the potition rested with the petitioners.

Mr. Cotter said that in section 46 the words "shall hold inquiry" eeemed to be very strong. They knew that in many legislative enactments the word "may" or ''shall" is used. Here the word "shall" was used, but afterwards it says that the Kehideut Magistrate " may " declare such election void. This, he contended, gave the Resident Magistrate the same discretionary power. The strongest argument was that there was no legislative enactment preventing the withdrawal of the petition and the enactment made it a case ■ in the ordinary acceptance of the term. So in section 52 the Magistrate has power to compel the attendance of witnesses, thus showing that it was intended tp be the same an an ordinary case, and ttie whole tenor of the Act from section 48 to 58 went to show that His Worship sat judicially and not merely in a ministerial capaoity as would be argued by the other side, aud that he must go into the inquiry. Formerly petitions against

elections were heard by a committee of the House, and it was only the Aot of 1880 which relegated the hearing of petitions to the Judges of the Supreme Court. Then, as it came before them in their judioial capacity, as in ordinary cases, the petition could be withdrawn, but the, Legislature said it should not be withdrawn except under certain conditions, and after certain notices had been given, and then that' others than the petitioners could step in, and provisions were put in defining the positions of these regarding costs; His Worship would see by section 55 that he may direct that expenses may be paid by the petitioners or by those petitioned against. It was clear that the intention was that there must be two parties as in an ordinary oase. Suppose the contention of the other side was correct, then the position would bo that the petitioners, finding they could not support the allegations of the petition, and gave notice to that effect, then his friend would argue that it would not matter that the persons petitioned against, or any stranger (for he must go as far as that) may insist on the petition being heard. Suppose the case was proved by the other side, or by strangers, His Worship would have no power to make an order on them for costs. He submitted that in favour of the petitioners' views no harm oan occur to anyone. The petition was presented at the last moment. It did not prevent anyone else from presenting a similar petition, and it lay with them to do so if they thought fit, but the petitioners put in this petition, and now it was argued that they must proceed with it, or that someone elso wearing their coat could couin and prosecute the petition with the result that in any event they would not have to pay costs and it might result in the petitioners having to pay all costa. If any person set tho civil law in motion he had the right to withdraw at any time, subject to the payment of costs incurred up to that time ; and ho did not contend that his friend had not a right to demand reasonable costs. But if the persons petitioned against proceeded could His Worship order costs. He had never found a single election petition case in which the persons petitioned against olvjucted to the withdrawal of the petition, ami provision against tho withdrawal of petition waa only made to prevent counnivance or collusion, and here it wnu not hinted that there was any collusion. But hia friend contended that ho had the right to usurp the position of the petitioners. He need not go through the arguments used by Mr. Laiehley, aud he could not go further, but it seemed to him by a careful reading of sections 48 and 53, Hia Worship sat there in a judicial capacity, and the person petitioning may be able to stay his hand, the only penalty be subjected himself to being the payment of costs.

Mr. Thoo. Cooper (for the respondents) said the first point raised was tbat tho petitioners had no power to withdraw the petition, and he would follow the course adoptod by Mr. Laishley by referring to what had occurred prior to passing the Act 2S, George 111,, and subsequently. Mr. Laishley referred to the Bedfordshire case, but in that case there was no opposition to the withdrawal of the petition. This was prior to the 28th of George 111. There was another case of equal importance, the Ivy Chester case, where the petitioner made application to withdraw his petition, but it was refused. There was then no statutory provision, but the answer of the committee of the House was, "You cannot withdraw your petition unless Parliament passes a special Act to enable yon to do so." This admitted that the House was seized with the petition, and that the only way by which it be withdrawn was by a special Act of Parliament. But the decisions of these Parliamentary committees could form no precedent or authority, aa the committee was only the exponent of the feelings of the party in power at the time. Since the statute of 28 George 111. there were, however, numerous caaen reported. Be referred to the Athlone case, in which it was ruled that tbe petition could not be withdrawn. In this cane there were two petitioners, both of whom were willing to withdraw the petition, but only one of them had signed the necessary author i ty. He quoted several cases to show the jealousy with which the discretionary power of allowing the withdrawal of petitions was guarded, referring to the Durham case and the bracken case. He contended that those who attacked an election did not represent themselves only, they represented the voters of the district. They wore public trustees, ;ind bad no power to withdraw. The intention of the Legislature, as expressed by Sir Julius Vogel in introducing the Local Elections Act, was to place the election of all public bodies on an equal footing— namely, election by ballot—and it was now adopted by all pnblio bodies as the keystone of tho municipal arch, and in Hansard they found that Sir Julius Vogel so expressed it. He submitted that in passing this Act the Legislature had in its mind the necessity for giving power to inquire into elections, hedging it with certain restrictions and placing in the hands of the Court the power of hearing and determining petitions. Hie friend, Mr. Cotter, said that he would contend that the Court had only a ministerial power. He should do nothing of the kind, but the Court had large ministerial powers, and every step after tiling the petition must be taken by the Court. He referred to the imperative word " shall" in section 43, and contended that there was an obligation on the Court to hear the petition. The petitioners, before tho petition was filed, bad to declare before a Justice of the Peace that they believed the allegations in the petition to be true, to abow that they had a priina facie case, before the Resident Magistrate took the first step in the inquiry, The petitioners then had no further conduct in tbe case. It was taken out of their hands and placed in those of the R.M., who issued ail notices, fixed the date of hearing, and he alone couid summon witnesses. Thus he was a ministerial officer, and the conduct of the petition was in his hands, not in those of the petitioners or respondents. What then,he asked, were the duties of tbe R.M. ? It was not only to hold an inquiry and hear the case. Section 51 set forth that there shall bo no inquiry into anything not set forth in the petition, The whole conduct of the petition is in his hands and he had no pawer to consent to its withdrawal. He submitted there was no implied power to withdraw the petition. What would be the position if tho Resident Magistrate refused to hold the inquiry ? Tho Supremo Court would compel him to hold it, and point out that the Act gave him no power to refuse to hold it, because he was informed that the petitioner desired to withdraw it. He submitted the materials could be brought before him by the respondents or any elector who "fi'ered himself as evidence ; and it would be t;ie duty of the Magistrate to hear his evidence. He submitted that the petitioners had no power to withdraw, and that the other parties had the right to carry it on if they saw fit. Hβ could not understand the allusion to the respondent taking advantage of bis own infamy made by Mr. Laishley (Mr. Laishley said he did not say so—he said there was no suspicion of the ..sort in this case.) Mr. Cooper continued that even in a case of bribery if a man acknowledged that he had been guilty, that he was not properly elected, and acknowledged his wrong, taking the consequences, he would rise in the estimation of h.s fellow-men. He submitted that the discretionary power of the Court came in after hearing the case. Then &g, to the wrong to innocent parties, where vr?s tbe wrong ? Certainly not to those improperly eleoted, and not to the eleotors. No vmmg existed, and his friend could not comp).ajn if the petitioners were taken at their own word. He submitted that there 'were no grounds to withdraw the petition, that the respondents had the right to proceed, and that no wrong would bo done to any party. It wae quite competopft far the persons petitioned against to acknowledge the truth of the allegations, but ishe petitioners could not come and say, " Wβ allege that the election was bad, cur opponents acknowledge it, and yet we desire to withdraw it." He contended there was no power to withdraw except by intitual consent, and the will of the Court. He quoted another case to show the jealousy with which the power to withdraw a petition was guarded by the Judge. Mr. Laishley am] Mr. Cotter replied at some length to Mr* Cooper.

Both petitions were then adjourned until Monday next at ten o'clock, to enable His Worship to come to a decision on the points at iseue.