RAILWAYMEN'S DISPUTE

New Zealand Herald, Volume LXVI, Issue 20423, 27 November 1929, Page 14

RAILWAYMEN'S DISPUTE

EXECUTIVE AT VARIANCE.

PRESIDENT EXCEEDS POWERS.

COURT GRANTS INJUNCTION.

[HY TELEGRAPH- —OWN CORRESPONDENT. 1 ] WELLINGTON, Tuesday.

Tlio split in tlio Now Zealand Locomotivo Engineers, Firemen, and Cleaners' Association, which was the subject of a Supremo Court action heart! last month before tho Chief Justice, the Hon. M. Myers, was dealt with in His Honor's reserved judgment, which was delivered to-day.

Tho plaintiffs, Robert Carroll, of Auckland, Archibald W. Mack, of Taihape, John James Penncll, of Wellington, and William l'ullar, of Dunodin, moved for a perpetual injunction to restrain the association, its president, Frederick J. Lewin, and the general secretary, William McArlcy, from proceeding with the calling for nominations for an election to till tho places of tho plaintiffs on tho execntivo council, and from doing or omitting any act for tho purpose of preventing or attempting to prevent tliem from acting as members of tho council.

At a meeting of tho council, held on May 22 last, stated tho judgment, Lewin refused to allow Carroll to perform tho duties of a member of the council, upon the ground that ho was not eligible to bo elected a member. Carroll refused to withdraw from tho meeting, contending that he had been duly elected and was eligible to act. Lewin thereupon adjourned (ho meeting until the following day, when all the plaintiffs attended. Lewin again requested Carroll to withdraw, which ho refused to do. Thereupon Lewin stated that if tho meeting proceeded Carroll would not bo permitted to take any part in if. Carroll then withdrew, and was followed by tho other plaintiffs. Upon tho following day, May 24, all tlio parties again attended, and substantially I ho same procedure was gone through. In tho result tho council could not function, because in the absence of all the plaintiffs it was left without a quorum. Nominations Called For.

On May 25 and 27, (ho defendants contended, (he council was to meet again, but nono of (he plaintiffs attended, and they said (hey had received no notice or any request to attend any meeting subsequent to May 24. McArley thereafter, by Lewin's direction, called for nominations for an election to fill the. vacancies caused by Carroll's alleged ineligibility and the absence of the other plaintiffs from the meetings of May 25 and 27 "in accordance with rulo 54 and amendments."

Dealing with the case of (he plaintiffs other than Carroll, His Honor said Lew in seemed to have assumed that absenco without causo from two consecutive meetings by a member of the council, ipso facto, forfeited that member's seat. However, what rulo 54 said was that any member of the executive council absent without cause from two such meetings should bo liable to forfeit, his seat. He failed to see that- the president was entitled lo arrogate (o himself tho right to declaro and enforce a forfeiture under tho rule. In his opinion, continued His Honor, the plaintiffs other than Carroll were entitled to the relief claimed.

iteferring to Carroll's case, His Honor said the difficulty arose under section 77, which provided that any member being obliged to leave the footplate on account of failing vision, deafness or other infirmity, but remaining in tho service, might continue to be a member of the association, retaining all a member's rights or privileges, on payment of 5s per annum, but he should bo ineligible to hold any office. The question was whether it could properly be said that Carroll, and other persons in the same position, had been obliged to leave tho footplate. President's Action Wrong.

His Honor proceeded to deal with tho history of the controversy regarding rulo 77, remarking in conclusion that the posi tion appeared to him to be either that the executive council and the grand council in 1925, and probably also in 1915, interpreted, tiie rulo in favour of tho "evesight" members, or else that tho position was so confused as to make it impossible to say what binding interpretation, if any, had by competent authority been placed upon tho rule. In any case, ho did not think it was constitutional for the president arbitrarily to say that Carroll was ineligible, and without any reference to the executive council itself, or to the grand council, or the association, to declare Carroll's seat vacated and call for nominations to till th"e vacancy. It appeared that the plaintiffs asked Lewin .to rule expressly that Carroll was ineligible, in order that steps could bo taken to disagree with such a ruling, but Lewin declined to do so. It appeared also that tho plaintiffs insisted that Carroll should bo permitted to function as an executive councillor until tho constitutional procedure for overcoming the difficulty should have been taken by tho executive council, but Lewin refused this also.

In all the circumstances of the case Carroll was entitled to the relief prayed. The motions of the defendants to dissolve tho interim injunction were dismissed, and the injunction was made perpetual, with costs, 50 guineas, and disbursements. That, remarked His Honor, did not mean that Carroll was to remain a member of the council during the whole of the remainder of his term, but simply that if his ineligibility was disputed tho proper constitutional method must be adopted to have the question determined.