THE LICENSING ELECTION PETITIONS.

New Zealand Herald, Volume XXV, Issue 9000, 13 March 1888, Page 6

THE LICENSING ELECTION PETITIONS.

CITY EAST. THE MAGISTRATE'S DECISION. The following judgment was delivered by H. G. Seth Smith, Esq., KM. at the R.M. Court yesterday morning, in the matter of the Auckland East licensing election petitions :— Licensing Election.—Auckland East: It is now admitted that the election of the nve candidates who have been declared elected by the Returning Officer is void, upon the grounds that their nominations were not delivered at the appointed place at the appointed time. I need therefore say nothing about that. I have to consider whether any or all of the other five candidates shall be declared duly elected. In dealing with this part of the case, it seems to me that I must treat it as if these last-named candidates had been declared elected by the Returning Officer, and a nad been lodged against them. Section 51 of the Regulation of Local Elections Act, 1876, prohibits an inquiry into the truth of any allegation not set forth in section 50. I can, therefore, only consider euch matter as would have supported the petition. The first objection taken is to the appointment and qulincation of the Returning Officer. The fact that he has acted as sucn ; with the tacit consent of the local body with whom his appointment rests, is prima facie evidence of his appointment by the local body. If there has been any irregularity in his appointment, that would be no ground for declaring the election void, unless it had been shown that such irregularity tended to defeat the fairness of the election. It has not been shown that the fairness of the election was in any way affected by the alleged irregularities. Assuming, therefore, that some irregularities have been disclosed (and upon that point Ido not think I am required to express an opinion), they do not afford any sufficient ground for declaring the election wholly void. The next point taken is that two of the five candidates in whose favour declaration Lβ sought, were at the time of their nomination, at the commencement of these proceedings, insolvent, within the meaning of Section 7 of the Licensing Act, 1881. The meaning of the word " insolvent" was much discussed in the House of Lords, in Regina v. Saddler's Company, 32 L. J. 28. 337 (1863). A by-law of the Saddler's Company disqualifies from holding certain offices any person who has been a bankrupt or has become otherwise insolvent, and their Lordships decided that the words, as they are used, referred to a public insolvency. Lord Cranworth said : " interpret the •word insolvency to mean not mere inability person to whom it refers to pay his deßts'in full, but inability proved by some reHJsward act, such as stopping payment or compounding with his creditors. Lord VWnsleydale said: "I cannot help thinkmg it- Is quite clear that the term ' insolvent' public insolvency—not necessarily taking the benefit of or being made liable to the Insolvent Act (it could not have that in New Zealand), but being incapable"to pay his debts in ordinary course, or in .words 'having stopped payment." . This/definition seems to me to be exactly applicable to the Licensing Act, and to the facts of this case. The firms, of which the two candidates now under consideration are respectively members, have assigned their estates to trustees for the benefit of their creditors, and no dividend has as yet been paid. Each firm is therefore, in a state of insolvency. It is immaterial what the future result may be. Insolvency means, as Willes J. pointed out, not the inability to pay 20s in the pound when the affairs shall be ultimately wound up, but a man is in insolvent circumstances when he is not in a condition to pay his debts in the ordinary course, as persons carrying on trade usually do (ibid, at page 345). But it is argued that though the firms may be insolvent the individual mepibers not having compounded with their separate creditors are not insolvent in their capacity as private individuals. The answer to that seems to me to be that a man is not insolvent unless he is unable to pay all his creditors in the ordinary course, and he is none the less insolvent because to soma of his creditors he is liable jointly with some other person or persons. Some nypothetical cases have been suggested to show that a man might be "solvent" and " insolvent" at one and the same time, solvent as a private individual, and insolvent as the member of an insolvent firm. In one sense, that is quite possible. For instance, a member of a firm might have settled all his private property on his wife, so that when the firm faued ne might have ample means, or at least the command of ample means, to maintain himself and his family, and by paying cash keep himself in the position of having no private creditors, and in that sense be in a solvent condition. But I do not see how it could be successfully contended that, he was not in fact insolvent merely because he had placed his property beyond the reach of tne creditors 01 the firm. As a member of the firm he wotild be within the mischief intended by the Legislature to be avoided—the mischief of having what Willes J. has called " empty bags, with all the pliancy and want of consideration which proverbially belong to them," elected to a responsible office. I must therefore hold that these two candidates are and were insolvent, and so disqualified. I have now to determine whether the whole election is consequently void. I think not. These two candidates were properly nominated. It was no part of the Returning Officer's duty to determine whether they were eligible or not. His duties are ministerial, and are not judicial. Five nominations were duly made in the proper manner. It was the duty of the Returning Officer to have returned these five candidates as elected, and I consider it is now incumbent upon me to act as if he had done so, and.l were now holding an inquiry into the validity of the election of the two insolvent candidates upon a petition duly presented. If the Returning Officer had done what, in my opinion, he ought to have done, and such a petition had been presented, it would have been my duty to declare the two insolvent candidates ineligible. In my opinion, therefore, the three candidates against "whose election no valid objection has been taken must be held to be duly elected, and in respect of the other two candidates extraordinary vacancies have occurred* The elected candidates are James P. King, Thomas T. Masefield, Jonathan Winks. Costs, £8 15s, will be allowed. Air. Cotter submitted that His Worship n o*> touched upon the question as to the legality of the form of nomination, •bflfiis Worship said that it was not necesffijfcr that he should deal with that question, aathe other points had decided the case. THE TWO OTHER PETITIONS. Mr. Cooper said that he could not accept •Bie Worship's present decision as in respect tb J the other petitions—those having reference to the City North and City South elections, since the circumstances were entirely different. In City North and City South the nomination papers were addressed to Mr. S. Y. Collins, the Returning Officer, under the very words of his appointment, and this was sufficient to make the election good. In City North, whilst the papers were addressed to the proper official, the district was mentioned as the "Auckland North Ward," whereas the district was really the " District of Auckland North." The boundaries of Auckland North, however, were coterminous with those of Auckland North Ward. His Worship would, however, see why he (Mr. Cooper) could not accept the decision of the Court in the case of the City East petition as applying to the City North and City South petitions. The hearing of the Auckland North and South petitions was then adjourned till Monday next, at half-past ten a.m.