MR M'COMBS WINS

New Zealand Times, Volume LIII, Issue 12395, 15 March 1926, Page 7

MR M'COMBS WINS

ELECTORAL COURT DECLARES HIM NLP. FOR LYTTELTON WITH MAJORITY OF ELEVEN T WILL BE THERE AGAIN IN THREE YEfIRS’ TIME”—MR LYONS

The Election Court, which was presided over by their Honours Mr Justice Stringer and Mr Justice Ostler, gave its decision on Saturday, granting the petition of Mr J. McCombs to be declared elected for the Lyttelton seat, in- place of Mr M. E. Lyons. After the court had scrutinised the votes in dispute, it declared Mr McCombs elected by a majority of 11.

Tho judgment of the court was delivered by His Honour Mr Justice Stringer as follows: In this case tho court has acted upon the principles already laid down in the Westland case in deciding the questions of fact raised by the evidence as to whether certain votes could be validly objected to on the ground that the voters had been illegally placed and retained on , the roll. Nine cases of this kind alleged by the petitioner were admitted by counsel for the respondent, and these votes have been rejected. Six cases of this kind the petitioner essayed to prove. WitK regard to two of these, Archibald William MacPhail and his wife, it was admitted that the proof had failed. With regard to four, Rena Winifred Adamson, Muriel Isabel Wiggins, Leslie Tracey Kiver Allison and his wife, in the opinion of the court the proof was sufficient, and these votes have been rejected. We think the case of Miss Adamson is distinguishable from that of a medical student, inasmuch as a probationer nurse is required to enter into a written contract of service and residence at the hospital, so that her principal place of residence is where she has contracted to work and reside.

The respondent filed objections to the qualifications of 14 voters, but no evidence was offered with regard’ to nine of them, and the want of qualification of the remaining five was admitted by the petitioner. The total number of those who were proved or omitted to lack the necessary qualification was therefore 18. We have carerully examined the voting papers of these disqualified persons, and have deducted their votes from those of the candidate fn Whose favour they were respectively cast. We have also examined the votes recorded by a cross, and which for the reasons given in the Westland case, we think were wrongly rejected, and have allowed them to the candidates for whom they were intended. The result of these adjustments is that it is necessary to hear evidence as to the disqualification of Cyril Edward Booth, for which purpose wea had reserved leave to the petitioner. We also find it unnecessary to deal.. with the three votes referred to in paragraph 4 of the petitioner’s particulars. Even if these wfere declared valid they would not affect the result. With regard to the three votes mentioned in paragraph 5 of the sameparticulars, which w r e presume to refer to the three papers on which the names of the electors were written, we think these were invalid and were rightfully rejected. With regard to the two votes mentioned in paragraph ;7 «of rthe particulars, after comparing the signature on the applications to vote with those on the enrolment cards, we think the returning officer and the; , magistrate were right in rejecting -both these votes, and we see no reason to overrule their decision. ■' It was, in our opinion; impossible to identify either or these votes by comparison of the signatures. The final result is as follows— James McCombs, totqP number of valid votes 4900 ‘Melville Edwin Lyons, total number of valid votes 4889 Majority for McCombs 11 We therefore determine that James MoCombs has been duly elected for the electoral district of Lyttelton, and shall so certify to the Speaker of the House of Representatives. The respondent must pky the petitioner’s costs, and we fix:them on the Supreme Court scale as on a claim of £5Ol. We also allow witnessed expenses, limited to those cases in which he was successful, and to be fixed by the Registrar. We also certify for second counsel, and we allow a fee of £7 7s. Certificates of indemnity will be supplied to all witnesses applying for same. "NOTHING NEW DISCOVERED" Mr O’Regan raised the question of costs in respect of the reoount.

His said, that the court had no jurisdiction. Mr Donnelly said that Mr O’Regan ■was nort entitled to costs on the rer count because he had acted as . scrutineer, and it was on his contention that ballot papers were rejected, although he had argued the other way afterwsirds. Mr O’Regan said that this was not strictly' correct, but, seeing the result of the case, he would not argue it. He had raised points regarding costs because there was a good deal of unexplored territory. Honour remarked that nothing new had been discovered in this case. UNIQUE HAPPENING The Lytteltoii case stands unique in the history of New Zealand politics, as it is the first occasion in which an Election Court has unseated a candidate who has been declared elected after a magisterial recount, and _ has given the seat to another candidate without recourse to a fresh election. In an interview, Mr McCombs said: “We have known all along that even with the loss of the seamen’s votes I had a majority of those who voted and a majority of those who were legally eirtitled to vote.” Mr Lyons said: “ I will be there again. In three years’ time I will be ; Hunch better known.” FIGURES ANALYSED An interesting fact in connection with the court’s decision (says the “’Star”), is that Mr McCombs’s is the same as it was in the return-* ing officer's declaration after the poll, but Mr Lyons’s total* is eleven votes less, or, including the returning officer’s casting vote, twelve less. The figures after each declaration* I are as follow : Official Count. ' Lyons 49U0 McOomb3 4900 Informal 94 Lyons declared elected on the casting vote of the returning officer. Magisterial Recount. Lyons 4890 MoConnhs 4884 Informal 121 Majority for Lyons 6 Lyons declared elected. Electoral Court’s Count. McCombs 4900 Lyons 3889 Majority for McCombs II The number of informal votes is not stated by the Electoral Court, but on the figures of the magisterial recount, the informal votes and the votes disallowed for various reasons total 106. INTERESTING POINTS

Interesting point® in connection with the Electoral Court’s decision are:— • Votes recorded by marking ballot papers with, a cross are allowed. A nurse and a teacher working and residing away from their parents’ homes cannot give their addressee as those of their parents. The returning officer’s decisions in all matters over which he had jurisdiction were confirmed. There were no irregularities oomSlained of in connection with the conuct of the election. HIS MAJESTY'S OPPOSITION The election of Mr McCombs makes the state of the two Opposition parties in the House ever.. The Nationalists, together with Sir Joseph Ward and Mr H. Atmore, number twelve, and the Labour Party muster a similar number. It follows that the result of the Eden by-election may decide the question of which party is to constitute the official Opposition. Mr Lyons has been the lawful member for Lyttelton from the time of the returning officer’s declaration on November 14th until unseated by the Electoral Court, and has been paid a Parliamentary salary. It is not clear whether Mr McCombs will receive back pay for the time that Mr Lyons has he.d the seat.