HUTT COUNTY COUNCIL.

New Zealand Mail, Issue 997, 10 April 1891, Page 34

HUTT COUNTY COUNCIL.

COUNCILL3R C. W. BROWN’S SEAT.

It will be remembered that eome few weeks ago a peouliar legal point was raised with regard to the election of Mr C. W. Brown as member of the Hutt County Council. On the formation of the new borough of the Lower Hutt, the property owned by Mr Brown in the Epuni Riding was included within the said borough, and it was contended that owing to the change Mr Brown lost his qualification t® sit as Councillor. He however has continued to keep his seat; and the County Council, by an action in the Magistrate’s Court on Friday, before Mr Robinson, R. M., sought to deprive him of his seat by ouster. Mr Travers appeared for the County Council and Mr Bell for the defendant.

Mr Travers, in opening the case, detailed

the circumstances and contended that by the alteration of the district and the inclusion of Mr Brown’s property within the new borough, he, in common with all other per* sons in like circumatanoes, must cease to possess the qualifications necessary to constitute them electors. The case was brought under section 132 of the Counties Act, and taken on the ground that Mr Brown had become incapable of performing acta as a Councillor of the County Council. Ho would point out that the 59th section of the Act enaoted anyone could be a Councillor as long as he had the qualifications to vote. It was conceded that when the electoral roll was prepared, Brown’s name appeared on the valuation roll as tha owner of certain property. His name was therefore entered on the electors’ roll, together with the number of votes to which he was entitled. If no change had beeu made in the physical condition of the county, then the right of Mr Brown to be elected Councillor would have been unquestionable. The question was as to whether he had lost the qualification to be a Councillor by the alteration of the County boundaries. He contended that all those who had keen included in the new borough had no right whatever to Bit or act as Councillors. The English Municipal Corporations Act (Sec. 11) enacted that a person was not entitled ta be elected a Councillor unless he was enrolled, and entitled to be enrolled, as a ratepayer. This also held good in this Colony. It would be absurd to think that a person, merely by enrolment, was to be entitled to election as Councillor. Be would submit that the word “ qualification” used in the first sub.seotion of clause 85 of the Counties Act, meant a property quali. fioation, and if a person relinquished such, he should cease to be an elector of the county. Of course it would be contended that the qualification referred to meant the mere faot of a person being on the electoral roll. This would be an absurdity if the said person had no right to be on the roll, and the qualification must therefore refer to that of property, as maintained in England. The object of all Municipal bodies was that they should be, and continue to be, composed of persons having a direct interest in the district. There was also another point to which his learned friend would refer, which was that Mr Brown does at present possess a property outside the limit of the borough which would entitle him to be on the electors’ roll if he continued to possess it up to the time the new electors’ roll is prepared. Mr Brown, however, had acquired the said property since the for. mation of the borough, and was not on the valuation roll in respeot to same when the new electors’ roll was made np. Mr Brown owned he got the property on December Ist, but the lease was not satisfactorily settled till March. He (Mr Travers) had no oase to cite on the bearing of the Act affected, but he contended that during his tenure of office Mr Brown must continue to hold the qualification which entitled him to be elected as Councillor. If, as a faot, Mr Brown, by, the circumstances of this case, had become incapacitated to hold office, his Worship could, and should, oust him from that office.

Mr Bell, addressing the Bench, pointed out that Mr Travers wrongly assumed that a man became qualified to become a Councillor by virtue of a pieoe of land. This was not the case. The Act said, “ every elector,” and this referred to the electoral roli. Of course all on the valuation roll had a qualification on“ the electors’ roll, but those on the latter were put thereon by virtue of being on the valuation roll, bat need not necessarily possess property. * A member of Parliament in England had to posses certain qualification in land, but who ever heard of a member of Parliament being disqualified because he had ceased after election to hold the qualification necessary for election. Such a thing would not hold in law. The man elected wonld have to possess certain qualifications at time of election, bnt need not necessarily maintain the qualification. His learned friend relied on section 85 of the Counties Act, whioh contained no less than seven sub-sections. Mr Travers only referred to “ No. 1” subsection, which read, “ Any person not having the qualification prescribed by this Act shall be incapable of being elected, &o.” He {Mr Bell) bad already shown that Mr Brown possessed qualifications for being elected as councillor, by virtue of being on the electoral roll. The last sub-section (No. 7) of clause 85 enacted that “ If any person whilst holding office as councillor or ■ chsirman shall become incapable under sub-sections 2 to 7 (both in» elusive), his office shall thereby'be vaoated, and such vacancy shall be deemed an extraordinary vacancy.” This did not refer to subsection No. 1, the only one quoted by Mr Travers, He maintained that the Legisla. ture exeeptad a man, already elected, from bGing disqualified owing to parting with certain supposed qualifications, and he could not be ousted. Tbo express exclusion of this particular cause for disqualification entitled Mr Brown to retain his Beat. Of course if application was made to His Worship at the proper time (end of May) Mr Brown’s name could be removed, but crmtempoianeously with that, Mr Brown could apply to have his name placed on the roll in respect to his fresh qualification. He submitted that his Worship could not go behind the electoral roll to enquire into Mr Brown’s qualification to sit as County Councillor. Mr Bell cited the Wanganui election petition case to bear him out on this point. Judge Williams having decided that though a man be an alien, his vote was to be allowed if his name was on the electoral roll, as nothing could go behind that. The question was not whether a man had a right to be on the electoral roll, but whether Mr Brown had a right to vote, and he (Mr Bell) contended that being on the electors’ roll the defendant had every right to vote, and therefore was qualified for office. There could be no doubt about the roll being conclusive evidence of a man being qualified. He contended that the case should be dismissed. As regards costs be submitted that the case Bhonld not be treated as an ordinary Resident Magistrate matter, as he thought it was one of great 1 public importance. He (Mr Bell) repre*

Banted not only Mr Brown, but also those who supported and voted for him. The diguity of the case should be considered in the question of costs. Mr Travers, closing hia case, argued that even though the electoral roll was conclusive a man proved to be outside the district could not be qualified to vote or sit as councillor. He contended that the must be continued in accordance with Beotion 85 (and subsections) of the Act quoted. If a person was out of the county then he ceased to be a member cf the corporate body.

Mr H. W. Robinson, R.M.; gave his decision in the above case on Monday morning at the Court, Mr Travers appearing on behalf of the County Counoil, and Mr Gully for the defendant, Mr C. W. Brown. His Worship’s decision was to the following effect: —lt appeared by the affidavit sworn by Mr Jones {clerk of the Council) that Mr Brown was elected a councillor of the Hutt County in November 1890, and that he had sinoa acted as a Councillor, and still claimed to do so. It was further alleged in the affidavit that the qualifications in respect of which the said C. W. Brown had been placed on the Elector’s Roll of the Epuni riding, was property then within the said riding, but which had since been wholly included in the borongh of the Lower Hutt. It was contended that Mr Brown had thus ceased to possess the qualifications necessary to entitle him to continue to be a the county. It was urged that section 85 of the Counties Act, 1886, prescribed that a person would be incapable of being elected or being a councillor if he had not the qualification required by that Act, and that section 87, providing for vacancies by reason of incapacity mentioned in section S 5, must be taken to inolude that set out in sub-section 1 of section 85. But it appeared to him that the qualification mentioned in rub-section 1, Bection 85, must be taken to be that set out in sec. tion 89, viz., the being on the valuation roll, and it had not been attempted to be shown that Mr Brown was not, or is not, on the valuation roll. But even if it be taken that the qualification mentioned in sub-sec-tion 1 of section 85 was to be understood as the possession of the property in respect of which the ratepayer would be entitled to be on the valuation roll, from which his name would be transferred to the elector’s roll, it appeared to him that the express qualifications of the disabilities mentioned in sub-sections 2 to 7 of section 85, as causing a vacation of office by a sitting councillor, must be accepted as on intentional omission and inclusion of that in Bub-section lof the same clause. It was worthy of note that no precedent had been cited for ouster of office by reason of an occupant having ceased to hold the propeity in respect to which he was originally entitled to be elected. The electors’ roll was still in force and Mr Brown’s name was still npon it, and could not be removed until a fresh roll was being formed. It might no doubt seem very reasonable that when a borough was carved oat of a county and a burgess roll formed, the county electors’ roll Bhonld at the same time be revised, bnt the Legislature did not seem to have thought tit to make any- provision for this being done. He had considered the matter carefully, and bad come to tho conclusion to dismiss the summons, with £5 5s costs.