BRUCE LICENSING PETITION.

Otago Daily Times, Issue 12618, 23 March 1903, Page 2 (Supplement)

BRUCE LICENSING PETITION.

THE POLL DECLARED INVALID'.

On Wednesday, March 11, Sir G. Cruicltshank, S.JT,, sat in' the Cliainber'i. Room at" thi Supremo Court to givj his .decision in the Bruce licensing poll inquiry. Messrs $. K. pbapmnn, W.' A.' Sim, and D. Reid (instructed by ''Mr 'if; Paterson and" ATiss Beiijamin) appeared' in support of the petition to up3ct the election, and the Temperance party were represented by Messrs'A. S. Adams arid J.'F.'WoodhoUiie' His Worhip, after dealing tvith the law'of tho case aud tho facts brought out in evidence, went on io say:— ■ ■■■■■■■*■■ ■. . ;■ .■**?

I will next'take the cases coming under the sixth subsection—that is, instances of irregularities which 'tended to defeat the the election. "By the common law an election was arqifjed if the irregularities prorcej were such as'to effect'the result of the election,'bat it'is clear thtit e'certain'piactide' may be unftiif in its tendency without, as a matter of fact, really affectijig'the result of the'poll, and is' tllis class'df 'pfscticd'wliic'h 'comes "unde'r ihe : sixth subsection. - - ■ To take the individual irregularities: 1. There' was evidence' given of nine instances where one only of the two returning pffiderS assisted old or illiterate voters without.the presence of'rhe scfiltineers at both and licensing polls. This did not affect:the fairness, as I cannot doubt the impartiality of or impute bias to the returning officers''wit*iou< positive proof. . ■■ ' r " ; ,. ,2, The returning officer at "Waitahuna refused to count four votes lawfully given,' owirig <"o'the Ivo-license scrutineer challenging the' voters: As the yoters answered all the statutory .questioiie; it was his Bounden duty to count tJiese four votes. , Ifthis httd'happeped prior'tcr'nt-. year, it would be unfair, but I think the recount permitted and held under last year's' act' was meant to cure this kina - bf uhfairne§e,ahd'it has, in fact, done so. I hold, therefore, this hot tend to' defeat the fairness of 'the election. ' J '" • ■>■...-1- ■

3. Considerable evidence w.as given of three voters who we'r,if denied'tfie privilegeof' votine by"the returning officer; biifas in each insfane'e either the identical name was not oh the rolj or someone of the same name had already voted, I faiPfb see how either party can clSim 'tie's* votes, and so there'is no unfairness. ' ■''■""'

4, A njnii named Roy fearson came into the Akatore Beach'booth near closing time, irt'd stayed wjth the officers after the poll was'closed, and was present when the voles we,re counted, As there were only 'Sl' , votes' taken i&ere'aH clay," the papers might l)e carefully handled and scrutinised and the secrecy of (he ballot endangered by the presence of sworn to secrecy. It waa a distinct bfeach'bt the, acf, being a violation.of section 129, and, was very improper. Still. I do. not fe'el dispos'ed to say that anythliig happened th'a't give either party an advantage in this instan,ce, 4P,<} I liold it did hot defeat the fairness. ' ".".''''

51' Evidence ' was' given' "slio'witig' that for a great part of election day MeEsts Klaikie, Western, and a Salvation Army" .officer were"iiiside'tlie passage leading frmn'thY front door of the sehooHiou?? to the polling'room at Kaitaugata. One voter—M'Leiland—says ha was told to strike out the top line, bill from Jl'Leliand's tone in the box I' should not think lie was in any way influenced by these pugges- ■ tioiis. As to .the'fairness'of it, I do'not "slippose the presence" of these* gentlemen Helpe'd their cause in any way; probably did ty harm. 6. The next irregularity is the want pf secrecy alleged in various instances. Tlie funileniental principle of ftiting by ballot is the'secrScy of the system. This is the spirit of the English Ballot Act. sml also of all our Elecioril'AcS; whether for parliamentary,,local body,'or local option elections. Jn the Bolfon case Mr Justice ' Jlellor "said: '"There 'is lio' doutt'jhaf-'the Legislature, 'when it passed the Ballot" Act; ■ did intend that that should be a perfectly secret mode of vpting ns fax as any instrumentality or 'machinery which , it could' provide could niake.itVo." And.the learrie'd judge then went-on to show Miat the Ba'.lot Act visited the violation of secrecy by a penalty (in' New Zealand it is punishable by imprisonment), but the act does not declare in any way that infringement of secr;cy" affect the'seat. Ariotlior'jiidge also said: " I am satisfied there is nothing in the act, however it may affect individuals, which, can affect.llie seat." There is, therefore,' nothing in the Electoral Acts whereby individual cases of want'of secrecy in voting will affect an election. 'The .only .case of such is where the wint of secrecy is so" wholesale that large numbers, sufficient to make it tipcertain which way an election might have resulted, have,'through fear of disclosure, refused to record their vole. There is ho evidence Here ' of any fear of the infringement of th? secrecy of the ballot which kept voters.away,'siicrj as was urged in the Ddwii case (3 O'M. nnd'H.. 126), or in the Wellingtou election petitipp'. -The evidence shows that in Id instances voters entered the inner compartment together' or otherwise, and completed their voting in company. These couples were generally, husband and wife, or parent and child, or two intimate friends.' The Milliurn polling booth had" ita inner compartment closed nearly all day,-the i voting Ijeing done on the back desks of the ! m«ih room—not a large one. In one' instance , one lady'says she did the actual striking put , for her friend.' In atiotficr case the'wife .of . the depnty-returnirig officer at Milbnrn,'during the sliprt 'jibsence of her husband, seems to'have , suggested to an pjd H'ptpr l ho\y to exercise his ■ privilege.' I have to decide the qnostion whether these breaches of tlie secrecy of the 1 ballot (ended to defeat the feirae?e of the elpp; tio'n. thp "majority was'over'3o, J do'not think the proved'cases affected the result.' I think that in tjie majority of the. cases, the voters had made' up their mind before' enter-,. ing, and ncitlier side won nor'lost"voles by"tlie practice. Tlip law, howevfi, expects ea'chvo,ter to vote alone npd Eecretfy., free from tuition, OTersight,'intimidation, siiggestion,'or parental or marital control; If the' stronger-minded 'are to bo allowed to vote in coupies along with, their, weaker friends, how can such a pfdcednr'e be' fair, "even it , if'does'nol a'ffcct tllß result? I think in' this 'election its tendency ja to defeat the fairness of the election. It is tyith reiuctarice'l uphold the prayer of the petition and declare the' election' v6id'. .1 do so upon the ground of the poll being closed at Slanuka Creek, Berwick, and Waitahuri'a \ Gully, and'also the tendency of the practice of violating the secrecy of. the ballot to defeat the fairness of the ejection." This has lisen' ipy opinion since first hearing the evidence, "but''.l bave delayed thp matter to make sure of my conclusions, in order to uphold, if possible, the verdict of the people; bat'l can'come to no other decision. " If, says Baron Pollock, •

" the language need by the. Legislature is.pjain and clear, we have notliing to do with' its'policy or impolicy,' , its justice or fte injustice,' its being framed according to. qiir. yieiys o£ right or (he contrary—vie have nothing to do but obey it and administer it as we find it." : ' I therefore ((eolero the poll void. , .. .

THE SITUATION IN BRUGB.- ' From all appearances, the situation in Bruc«, now that the poll has been'dectareT void by the 'magistrate; is likely to prove' interesting. /' We arc by no means at the end of the legal conundrums in the' case. Tlip first question to' be'.corisiSerVd seems , to be whether.or noV'a fresh poll can be. pbtnined by the joint oppration of section 52 q( the Licepsmg Act of 188|, and section 6 (sub-section 2) of the Interpretation Act ot 1888. Provision appears to he made for the taking of a, new. poll where, by any miscliance or misadventure, a poll has not b.ee'n taken on the' dayprovidea. As the poll has / been dccluetl void it cannot be said that a ' poll has'bten taken, and application is likely, to be made to the <jovefnbr-in-C6aricil'to appoint a day for the taking of a fresh" poll.

If no fresh jjoH'is takfn there is still the questiou of the power to grant licenses at all in the district. It will be .remembered that the Electoral Boundaries Commission sat last year and altered the boundaries of a nnmber of ejistricts' in the colony and created several new districts, among the latter heing Newtqwn and Chalmers. The boundaries of Bruce were altcfed by the inclusion of portion of the Taieri electorate, and in other ways. Is the, present licensing district of Bruce the samp district'as that in which the poll was taken in 1899? If not; then the question to be answered is: Can nny licenses at all be lawfully granted in the district? The boundaries of the licensing djs : trict's arc the same as those of the electoral districts, and the electors who -voted. at the poll's are the electors included within the area of : thc"electoral' district. At'the poll in 189& the electors o.f the portions recently added to the Bruce district had-no voice whatovor in Bruce. They hive been included in that electorate without being consulted, but they, have acquired a right to vote upon thq question, of license or no-iieens.e. It is held that clearly (he electors in Bruce to-dsy are not the same. body of electors as in 1699, and the geographical district is not the same. It will no. doubt be contended that Bruce 'is a new district;' and that the electors of that new district, now that the poll has been declared void, have never determined' whether or not licenses shall bo issued: Scftion 3of the Alcoholic Liquors' Sale Control Act of' 1895 expressly provides, that from and "after Hie commencement of this act no licenses of .any "description ehall, be granted or Tenewed until the electors of the iisinvt sballhave previously determined whether or not . licenses shall be granted in the district. The electors of Bruce, as at present constituted,, have determined nothing. Can a licensing committee proceed to giant licenses in face of tho provisions of the above section? It would appear, therefore,'that interesting development? may be expected.