Licensing Committee Election.

Oamaru Mail, Volume XVI, Issue 4980, 22 May 1891, Page 3

Licensing Committee Election.

At the Resident Magistrate's Court, this morning, before H. A. Stratford, Esq., R.M., the petition of S. E. Shriinski nnd others v. D. Dunn and others was heard. This was a petition for inquiry into the validity of the election of a Licensing Committee for the Licensing District of Oamaru. MrjSewton appeared for the petitioners and Mr A. S. Adams (Dunedin) for the respondents. Mr Adams applied that the petition marked No. 2 be heard first, on the grounds that it went directly to the root of the whole question and that ?. decision on the petition marked No. 2 in favor of the petitioners would render it unnecessary to hear petition No. 1. Mr Newton objected, arguing that the petitioners had purposely elected the order of the petitions, as, in the event of (letition No. 1 being upheld, the petitioners might not wish to proceed, as they only wished to remove certain members from the Licensing Committee and not to have a new election. Mr Adams argued that the popular wish of the people would be over-ridden by the upholding of petition No. 1 and the withdrawal of No. 2. His Worship saw no reason to disturb the order of the petitions as lodged by the petitioners, against their wish. Mr Adams objected to the hearing of petition No. 1, under the Regulation of Local Elections Act, 1070, section 48, which provided for the form of declaration to be used in the lodging of petitions against local elections. The form of the schedule in petition No. 1 had been followed in the body, but at the foot the word "elector" bad been omitted prior to the signatures. Mr Newton submitted that the signatures were entirely distinct, and were no part of the form of declaration. He also submitted that the omission was imma- I terial. His Worship overruled the objection. The Clerk having read the first petition, Mr Newton called W. G. Filleul, who j stated he had held an election for the return of a licensing committee for the Oamaru Licensing District on the 27tli of April last, and acted as returning officer at the same. He appointed no substitute and no deputy. Messrs David Dunn, Benjamin Billing. George Thomas Evans, i John Oliver, and Henry Exley were declared duly elected as the result of that election. Asked to produce the burgess list he used on that occasion, he declined without an order from the Court, as the roll was scaled up with the voting papers. Mr Newton applied for an order of the Court. Mr Adams objected, submitting thatsuch a course would be violating the secrecy of the ballot, and that an Act only provided for the opening of the sealed parcel when a scrutiny of the voting papers was necessary, and that therefore the Court had no power to make such ail order. His Worship upheld the objection. Witness, continuing, stated that the roll used was the ordinary burgess roll for 1S!)1. He produced an attested copy of the roll used. Any person whose name appeared on the roll was entitled to vote. He gave the requisite notice of the election, and produced a copy of the North (Jtago Times containing same. He gave notice of poll on the ISth of April, and produced a copy of the Oamaru Mail containing same. He declared the result of the poll on the evening of the 27th, and produced a copy of the North Otago Times of 2Sth April containing same. He produced nominations of the five candidates who were declared elected. The words "Licensing District " on each nomination paper were in his handwriting. The words were written by him in all cases before the papers were issued. The papers were all signed by the nominators when handed to him. The paper of Evans was signed by one of the nominators in the Borough Council Chamber. The papers were all complete when handed to him. He received them at the time as specified oil the nomination papers. He produced the Gazettes for January 20th. 1882, and January 14th, lSSfi. The Gazette for 1882 contained the first notification of the declaration of four licensing districts for Oamaru under Act of 1881. The Gazette for 188<> contained the proclamation of Oamaru Licensing-District. He (witness) had acted as returning officer in Oamaru from December, 1882. to the present time. He knew of no proclamation other than the two quoted. Of the candidates elected Messrs Billing, Evans, and Exley were not on the burgess roll put in and used at the election. Messrs Dunn and Oliver are on the roll. Of the petitioners all were on the roll, and their signatures were attested by Mr G. S. Lintott. a justice of the peace. Henry Exley stated he lived in Oamaru. He w;is an Englishman born in England. He was naturalised in America. Mr Adams objected that an assertion of naturalisation was useless without the production of papers of naturalisation. Witness continuing : He was a British subject. He had resided in New Zealand since April, 1882. His parents were English. He had lived in America fifteen years. Mr Newton submitted that an admission by a party against himself was sufficient proof. His Worship said he would have taken it as evidence if not objected to. A person might assert himself to be something he was not in all good faith. Objection of Mr Adams sustained. This was .all the evidence called. Mr Newton, in addressing the Court abandoned the first count of the petition. As regards the third count, that the candidates were not capable of being elected or of holding office. It was proved that three of those declared elected were not on the Burgess Roll Under section 13 of the Licensing Act, 18S1, the candidates were obliged to be residents, and he left it to the Court to decide whether the three gentlemen in question came within the provisions of the section. As re gards the second count, that the nominations were not given in the manner required. section 13. subsection 1 of the Licensing Act. ISBI, provided that the elections should be conducted under the Regulation of the Local Elections Act, 1576. Section 11 of that Act as amended provided that the nominations should be made in a certain form. He contended that the nominations were not within the section. They must be in a prescribed form. The district, according to the Act, had to be named three times in the nomination paper. Even if there had been no form the nomination paper would have to show for what district the person was nominated. The naming of the district was material. The Gazettes proclaiming the licensing district showed that there were four districts in Oamaru from 18S2 to 188f). After 18S6 the four were amalgamated into one district by the Government under power of the Act of 1882. The name of the district as gazetted was the Oamaru Licensing district, whereas on the papers the name appears as the "Licensing District of Oamaru," which is not the district at issue. A district must be described either by its boundaries—specific description—or by its technical name, and unless one of those methods is adopted there is nothing to show what district Ls meant. The papers were, therefore, not in the form prescribed by the Act. The question was not whethei the returning officer had been misled but whether the Statute had been complied with. For the defence, Mr Adams submitted in reply that the first allegation is abandoned. As regards the third count, the fact that Messrs Billing, Exley and Evans were not on the burgess roll, the Licensing Act distinctly says five " persons' shall

be eligible, while the word "ratepayer" occurs in several of the sub-sections of the same section, and it was therefore distinctly plain that the word "person" was used intentionally, with the object of admitting persons who were not ratepayers as candidates. As regards the second count, counsel for the defence had argued that absolute verbal accuracy was necessary in the designation of the district. The object of a name was for the purposes of identification, and he submitted that the name given was quite sufficient to show what district was intended. The schedule in the Act left a blank for the insertion of the name of the district, and he submitted that that had been complied with. The objection might have been carried further and struck at the root of the whole election, as the advertisements were issued under the heading of the Licensing District of Oamaru. The question simply hinged on whether the word Oamaru could be used in possessive. He submitted that the proclamation in the Gazette of 1882 was equivocal, and allowed of the use of either of the disputed designations, as the name of the district appeared simply as Oamaru, Waihao, etc., at the beginning of the description of the district, and it was left open as to whether the designation should be Oamaru Licensing District, etc., or Licensing District of Oamaru. He quoted various cases in support of his argument that a mere clerical error if not misleading was insufficient to upset an election. He referred to the fifth schedule of the Licensing Act, 1881, where the term "Licensing District of " occurs as proof that the legislature attached no importance to the form of the designation. In any case, he submitted that the name of the licensing district was "Oamaru." He submitted that the words '' Licensing district of Oamaru " were sufficient within the meaning of the Act for all purposes of identification. Mr Newton in reply stated that the proclamation of 1882, as quoted by Counsel for the defence, was an argument against himself. The proclamation of 1886 specially proclaimed the district as the Oamaru Licensing District and not under the quoted heading "Oamaru." He submitted that the mere question of interpretation did not arise. The question at issue was one of the name of the district. As regards the fifth schedule of the Licensing Act, 1881, quoted by the counsel for the defence, it was obsolete. His Worship gave judgment against the petitioners, holding that those declared duly elected were eligible for election, and that the name of the district was sufficiently described by the designa tion "Licensing District of Oamaru" for all purposes. Had the words " Licensing District" been omitted the papers would have been invalid. The petition was dismissed.

Mr Adams applied for costs, but his Worship deferred the question until after hearing the second petition. A second petition by the same petitioners, prayed that the election of the five candidates declared duly elected be upset on the grounds that (1) notice of the time and place and of the situation of the polling booth for the election of a Licensing Committee had not been properly given ; (2) a duly qualified returning officer or his substitute had not- been properly appointed ; (3) the person who acted as returning officer was not the returning officer of the Oamaru Licensing District or his duly appointed deputy. W. G. Filleul produced his appointment as Returning Officer for the Borough Licensing Districts. He had no other appointment for this district. To Mr Adams : He had acted as Returning Officer since December, 1882, and had fulfilled all necessary duties of the office. He had from time to time rendered accounts as Returning Officer to the Borough Council, and had been paid. No one else had tried to exercise the duties of Returning Officer since his appointment. The minutes of the Borough Council for 21st December, 1882, were produced, showing that the appointment of Mr W. G. Filleul as Returning Officer was certified by the Council. This was all the evidence for the petitioners. Mr Adams referred to the minutes of a meeting in January, 1883, stating that it was advisable to withdraw the petition for the amalgamation of the four districts. Mr Newton, for tlie plaintiffs, stated that the three counts of the petition were practically the same, but were differently worded, in order to meet possible points raised by the respondents. He submitted there was no returning officer for the Oamaru Licensing District. The Act provided that the returning officer should give 14 clear days notice of the election, and such notice was not given by the Returning Officer, as there was no Returning Officer. There were a number of duties to be performed by the Returning Officer, and none of these had therefore been complied with, as the necessary officer was non-existent. Until 1882 the Resident Magistrate was ex officio Returning Officer. Under section 5 rf the Licensing Act Amendment Act, 1882, the appointment was vested in the local body. The local body was the Municipal Council, and their powers were defined in sections 73, 74, and 89 of the Municipal Corporations Act. The Council could act only by resolution, and there was no resolution with regard to the appointment of Mr Filleul other than that produced. The resolution of the Council was, "Resolved that Mr Filleul be appointed returning officer for the licensing districts of the borough." The appointment declared Mr Filieul returning officer for the licensing districts of the borough, or licensing district as the case may be. He submitted that this was utterly invalid because it exceeds the resolution of the Council, and also because it was impossible for the Council to appoint a returning officer for a district which was non-exis-tent. There must be a licensing district in existence before a returning officer can be appointed, and the fact that there was a licensing district in existence was no authority for the election of a returning officer for a proposed district, nor had anybody power to appoint a returning officer, whose appointment could continue after the abolition of the district for which he was appointed. The Council might have appointed four returning officers for the four original districts, and after amalgamation which returning officer would be returning officer for the new district ? He submitted that on these grounds the election of a Licensing Committee was void.

Mr Adams, in reply, submitted that the second and third grounds of the petition were not permissible grounds under the specifications of the Act, and should therefore be struck out. The mere question of the validity of the returning officer did not affect the actual election. As to the appointment itself he submitted that it was legally and validly made, and. this the Court must presume in the absence of coercive evidence to the contrary. He submitted that the inference to be drawn from the appointment of Mr Filleul was such as to !ead to the belief that the Council had intended him to act in the event of a proposed amalgamation, and this was sufficient (in view of various authorities quoted) to establish the validity of the appointment. He submitted that the law should be very slow to move in interfering with an election which was valid with the exception of a flaw in the title of some person who was engaged in setting the machinery in motion. He submitted that the resolution of the Council Was riot exhaustive and until coercive evidence o the contrary was adduced, the Court must presume that this was so. Tlie fact that the Council had continued to

pass Mr Filleul's accounts was direct evidence as to their intention. He submitted that * the appointment of Mr Filleul need not have been under seal or even expressed, but could be treated by implication, such as the payment of accounts, etc. He quoted cases from the N.Z. Law Reports in support of his argument. Mr Newton, in reply, urged that the election of a Returning Officer was a vital point in an election, and provided for by special statutory provisions. He submitted that "Tom," "Dick," or " Harry" might conduct an election if they so choose if the appointment of the Returning Officer were not to be a vital point. He submitted that the cases quoted by counsel for the defence were not analagous. . His Worship gave judgment for the petitioners, on the ground that no Returning Officer had been appointed. He declared the election void. No costs would be allowed. [This, we assume, will entail a new election.]