THE MORNINGTON TRAM PASSES.

Otago Daily Times, Issue 12801, 23 October 1903, Page 8

THE MORNINGTON TRAM PASSES.

PROCEEDINGS BEFORE THE COURT. INTERESTING- LEGAL POINTS. The much-discussed action of the Morninglon Borough Cmincii iii voting free passes to members on the Morniiiglon municipal tramways was c tilled into question at tho City Police Court yesterday before Mr E. H. Carew, S.M,—James Annand, Mayor of Jlorningtou, being charged, on the information of Edwin Shelley Hants, journalist, Mornington, with that he did, while a member of (he council ot the Borough of Mornington, I knowingly offend against section 03 of the Municipal Corporations Act by taking part in the discussion of, and voting on, a matter before the council in which lie had directly a pecuniary interest—viz., a motion dealing with the question of free passes for, ami free travelling by, members of the council on tho Mornington municipal tramways. Mr Sim appeared for the informant, and Mr Solomon for the defendant. Mr Sim said there were two informations in respect of different dates. The evidence would be tho same, and might be taken as in both ' eases. The first charge was in respect to tho : proceedings on July 11. The information was laid under section GS of The Municipal Corporations Act, 1000.'' That section enacted that no member of a council should tako part in a discussion of, or vote on, a matter in v/hich lie was directly, by himself, pecuniarily interested, and tho net provided for a penalty on tho offender of £50 for a breach of that sccI tion, and, upon conviction, his seat a 9 a metn- ■ her of tho council should become vacant. Tho ! Borough of Mornington was a borough wi'lv: the meaning of the Municipal Corporations Act, and Mr Annand was Mayor, and, by 1 virtue of his' position as Mayor, he was a ' member of tho council. The council, shortly . before the date in question, had acquired, on behalf c-f tho corporation, the Mornington tramways, and the question of free travel on these tramways came before tho council originally on June 2, when it was recommended by ; tho Tramways Committee that a circular | should be sent to the tram conductors setting i forth the amounts of the fares, and that no ■ ires travel should be allowed except for the police and postmen. That recommendation was adopted by tho council. On July 11 it was proposed by Cr Anderson and seconded by Cr Dickson that the members of the council and the town clerk should travel free on tho tiamwaj'3) and that the Mayor should be i authorised to get the necessary badges. Tho i defendant was present at that meeting as Mayor and; put the motion to the meeting, and it was declared duly carried; and that, counsel naid, constituted an offence under the section. Of courso the informant did not know what ,actually tool; place; any evidence had to be obtained from tho camp of the enemy, as it were. The next meeting was on July 23, when tho minutes containing a record of the previous meeting were confirmed, Cr Lochhoad protesting; and the Mayor, at that meeting, handed the councillors the necessary badges. Mr Solomon objected to this, and Mr Sim contended it was relevant to the issue. Tlio Magistrate noted Mr Solomon's objection. Jlr Sim said tho. next meeting again was on j Ajigurt U, in respejfc to that the second

information was laid. On tli.r.t dale the rcsolntion v;as duly proposed and seconded and carried—'" Thai the recommendation of the Tramways Committee of Juno 2 be amended liy the insertion of the words 'tho Mayor, councillors, and town clerk' before tho word ' police.'" 'The effect of this was to give the Mayor and councillors and town clerl; tho right of frco travel oil _the tramways. Mr Annand was present at iiiat meeting and put tho motion to the meeting and declared' it carried. He (learned counsel) submitted that Mr Annand'a conduct at both of the meetings amounted to a breach of the act. Tho effect of that resolution was, in fact, the same as if the council had passed a resolution giving each councillor a sum of money wherewith to travel on the tramways, which was, in effect, a pecuniary interest to each member of tho council and to the Mayor. Ho (Mr Sim) did not suppose the defence would attempt to say it was not a pecuniary interest. Mr Solomon: I strongly protest it was nothing of the sort. Mr Sim: I put it to your Worship that giving a man a free pass is certainly conferring n pecuniary benefit. The act is very clear on the point. Even assuming. for the sake of argument, that the council had power to take fan passes, the voting on that subject was a matter in which the Mayor and councillors had a pecuniary interest. Mr Solomon: Why don't you challenge the Citv Corporation? Sir Sin: Tho City Council did not vote itself free passes. Mr Solomon: It took them. As Mr Mania is such a public benefactor, why doesn't ho reform the City Council?

Mr Sim: When he has reformed Homington he may devote his attention to the city; in the meantime ho Ims a pretty largo order in Mornington. Continuing, counsel for the prosecution said lie might cxnlain that these proceedings were not ~brought out of any personal feeling at all. but to get Mr Aunanil out of his office of Jlayor. What Mr Mnnlz thought was that Mr Annand and his fellow councillors had lost tho confidence of the ratepayers of Mornington, nnd lie (Mr Sim) could now say ra his (Mr Mantz's) behalf that if Mr Annand and tho other councillor* would undertake to rosisn st once anil submit themselves to the suffrages of the electors these proceedings would at oncc be withdrawn. If these gentlemen (Ilie Mayor nnd councillors) felt satisfied with their proceeding they should re.sisn and go before tile electors. Mr Solomon indicated that his client would r.ot accent th" olter. Francis B. Sra-iih, town clerk of Mornington, culled by Mr Sim. en.id tho defendant was eleclcd Mavor of the Borough of Mornineton. Tho council held a meeting on June 2, and tho report of tho Tramway Committee was presented then before a full council. The renort included the recommendation "that tho clerk lissue a circular to tho train conductors statin" tho amounts of the fares, and also that no free travel shall be allowed except for tho police and postmen." This recommendation was adopted. Shortly before this tho council had purchased the tramway system. On July It another meeting of the council was held, and all members were present. A motion was pronosed by Cr Anderson, and seconded by Cr Dickson—" That members of the council nnd 'town clerk bo allowed to travel free on tho. Mornington municipal tramways, and that tho Mayor ho authorised to procure the nece»sary badges." This motion was not minut»d as " carried." but it must have been carried. He could not remember whether it was declared carried. The usual practice was for tho Mayor to ask for any amendment, and if there was no amendment the votin? wa3 taken.

Mr Solomon said Mr Annnnd did not want fo jet out of (lie case liv a side issue. The clcfonclarit admitted that the motion was carried and declared carried. i Air Sim asked about the meeting on July 2S as to the Mayor producing tho necessary badges. Mr Solomon objected, and said lie was quite prepared to admit that tho resolution means what it stated. There was no desiro to get out on a side issue. Mr Sim said it might-be suspested that tho resolution passed on June 14 did not givo tho r'ght to travel free, and the Mayor producing tho badges would show what construction ho placcd on tho resolution. Mr Solomon: I quite take the responsibility of all thp resolution says. Tho Witness (resuming) said that at tho meeting on August 11 it was proposed bv Cr Simon, and seconded by Cr LcGrcn—" That the Tramways Committee's recommendation dealing with the question of free passes bo now amended by inserting the words 'the Mayor, councillors, and town clerk' before the word ' police.'" This was put to tho vote, and was livimitsd as "carried." The mitten copy or the. resolution produced was endorsed as " carried" by the Mayor. Mr Solomon: T)o you not know, as a matter of fact, that the Mayor absolutely f ];d nothing except put the motions? Did lie take part ill the. uisensfion? Witness: I do not think so. Mr Solomon: Did he vote? Witness: I am pretty sure he didn't. He doesn't usually vote. Cr Henderson, called by Mr Sim, remembered the meeting on July 14, but the Mayor did not take part in any discussion on the first motion. After the. motion was carried the Mayor remarked that they had a precedent in the City of Dunedin. Cr Simon's motion was not discussed, and, there was no amendment To Mr Solomon: The Mayor did not vote on either of the occasions. All ho did was to put the motions and declare them carried. This, Mr Sim 'intimated, closed the case for tho informant.

For the defence, Mr Solomon snicl his learned friend had saved the necessity of calling a considerable number of witnesses to prove what had already been proved—namely, what the Mayor did on those occasions. He (Mr Solomon) contended that the case must fail. In the first n'.acc, it hod not been proved that Mr Annand had committed a breach of section GS, if section 63 applied. He (counsel) would point out that this was a. serious matter: it was pot.» trifling matter, and it was regarded as serious by the Legislature. Although the fine might be slight, the office of Mayor became ipso facto vacant upon a conviction; conviction involved absolute los 3 of office. It was also a criminal matter, because it was followed by a criminal result. Therefore, fltis offence must, be brought within the letter or spirit of tlio law. lie (counsel) submitted it had not been brought within either the letter or spirit of the law. Under section G8 it. was perfectly obvious that a councillor should not influence a question in which lie was personally interested; that was the object of the Legislature—that lie (the councillor) should not influence the deliberations of the council in. order that lie might get a pecuniary interest. There were only two ways of doing that—by taking part in the discussion of or voting on that question. The words of the act wero perfectly simple—a councillor must not vote or take part in the discussion of any question in which he had a pecuniary interest. Mr Annand had done neither of these things. He did not- vote and he tool: part iu 110 discussion. Learned counsel for the informant had suggested that the Mayor, bv being present or by putting the motion to Hie meeting, took part in the discussion. If that were the rending of the word " discussion," why did the Legislature insert the words "or votes," for tho vote would be part of the discussion, and it was not so. Tho true kernel was that a councillor or Mayor must- not influence a matter in any way in order to obtain pecuniary interest; it would be very improper that it should bo so. To put the other reading on the word "discussion" would lead to simple absurdity. The Legislature meant that a man should not take advantage of his public position to bring about a pecuniary interest. But why, in tile name of Heaven, should a mayor not put the motion in bis capacity of mayor? He wou'.d be simply aciing ministerially. It was submitted that the case absolutely failed ab initio. Ho (Mr Solomon) had a variety ot other reasons. Ho bad not supposed for a moment that his learned friend would leave the case at that, without attempting to prove that Mr Annand took part in the discussion. The next question was whether the Mayor and councillors, directly or indirectly, had a pecuniary interest. Ho submitted they had not. A pecuniary interest was something by which a person gained a pecuniary benefit or stood a chance of getting a pecuniary benefit, and all that the question or resolution did was to give tho Mayor and councillors the option of free •travel. The distinction was this: That if it wero a fact that wero it not for this resolution Mr Annand 1 would be compelled to ride on tho tramcars and pay for so riding, then there would bo pecuniar}' benefit. There was no obligation on the defendant to ride, and tliero was 110 evidence that ho ever would have lidden 011 tho cars. Supposing it wero a municipal theatre, and the resolution was that Members of the council should be allowed to fro to the opera free of charge, did that confer a pecuniary benefit? Most certainly not. It was not something that could bo so'ld to anybody, this tfrce travel on the cars: it waa a mere right. Counsel for the informant had suggested it was the same as the handing to each councillor a number of pennies; but there was the distinction if they got the money they could keep it and not ride on the cars. Ho (Mr Solomon) had searched high and low, and ho supposed Mr Sim had also, but he could not find a case really bearing on tho point. The only one that came near it was an English case, Nell v. Longbottom (1891,1 Q.8.D., p. 7G7). In that caso a mayor had voted on the matter of a present for himself, and that was pecuniary interest, for pecuniary benefit waa the gaining of cither money or money's worth. It must not bo merely that 110 (the defendant) had the right to do something for which other peoplo had to pay. The free pass was merely an easement which the defendant had tho right to use it he choso. He could not hand it over to anyone else. There was another aspect:. If Mr Sim's contention were correct, then the whole of the council' 3 proceedings in relation to the passes were absolutely void. The nun who proposed (lie resolution had 110 right to do so, because lie certainly took part in the discussion, and the who> thing ob initio was absolutely nil. Nobody had a right to speak, nobody had a lisht to second the recolulion or to vote, and therefore there was no question properly before the council, for the whole thing was void, and there war, 110 question in -vhich anybody lwd any pecuniary interest before the council. No one could benefit from thnt resolution, no matter how he went about it.

The resolution would be absolutely void, consequently it did not make the slightest difference if the vote was "Aye" or "No." The next question was of much greater importance. These tramways were held under the provisions of tho Tramways Act of 1834. Under tho Tramways Act the tramways were vested in the council. Mr Sim: That is the old act. Mr Solomon said Ihe tramways, under the act of 1834, .were vested in the councils, and the councils were the promoters 0' the act. Mr Sim: Die Mornington tramway original Order-in-Council was got under the old act of 1872. Mr Soiomon: You must take the Borough of Mornington Tramways Act of 1901. That was a special act, and, counsel continued, the point was that by scction 9 of that act the council was deemed to be the promoters of tho tramways and had all the powers of the promoters. One of the powers of the promoters was the power to fix rates and tolls that people shall pay to travel, and to manage tho concern. Under tho Borough of Mornington Tramways Act the Municipal Corporations Act vras incorporated.

Mr Solomon continued his address at 2.15, after luncheon, saying he was about, when the Court adjourned, to suggest to tin? bench tho practical aspect of this question. Counsel for the informant suggested that Mr Mf.ntz came there as r. whole-hearted individual who desired to get rid of the Mayor and councillors because they had ceased to have the confidence of tho ratepayers. There was not the slightest evidence of that, or that it is anything but a meddlesome interference with other people's business. But tlisre was a far broader way of looking at this thing. Under the Tramways Acts, by virtus oi the tramways provisions, the view taken by tho Dunedin City Council was the right one—that councillors had a right to travel free, for they were the managers. Tlio Mayor, councillors, and town clerk travelled free on tho cars, but this concession was not granted by vote of the council. It was by cither the authority of the Mayor or tho town clerk, and it had been practically in vogue over since tho city took over the management of the city tramways. It was essential that the Mayor and councillors should have some such power as that. It was their duty, having taken up the management of the tramways, to wp.tcii the management of affairs in (ho samo way that it was their duty to go to tho reservoirs, the reserves, or other municipal property. Counsel for the prosecution had aTguod that they might have the power to do that, but that they could not do it in the way it was done in Mornington; in fact, there was no mean 3 of doing it. He (Mr Solomon) submitted an argument such as that destroyed itself, because it led to a palpable absurdity. Either the action was legal or it was illegal, and 110 proposed to show it was legal. If it was legal there must be the means of doing it. The Tramways Act of 2672 was (he first legislation enabling the purchase of tramways by municipalities, and then the genera! Tramways Act of 1801 was passed, but the act under which the Borough of Mornington acquired possession was a special act in its favour, known as the Borough of Mornington Tramways Act .of 1001. By the original act tho Mornington Company constructed ■ the tramway. and by' section 46 of that act they were enabled—that was, the promoters or lessees were enabled—to take tolls and charges not exceeding the sums mentioned in the Order-in-Council. By section 5 of the special act- of 1301 the Borough of Mornington was empowered to purchase several properties, of which this (the traftnvays) was one, and tinder this act there was incorporated the 'IVamways Act of 1694 and the Municipal Corporations Act of 1900. Here was the important point. Section 3 of the special act contained this: "That the Municipal Corporations Act is incorporated herewith, and is to bo read with it, but, in case of conflict, the provisions of this act to prevail." ' Scction 9 of tho special act said: "In respect of the said tramways and of ail tramways acquired, the council shall be deemed to bo the promoter of the tramways, and shall liave the powers conferred upon promoters by the said act," the said net being tho act of 1891. The effect of that section was to give (ho council tho same powers as wero given to the promoters bv the act of 1804, and under the second schedule of tho 1894 act, paragraph 31, exactly the samo powers wcro given of collecting tolls as were given under the act of 1872. The net result of that appeared to him (Mr Solomon) to be that these councillors had the power to fix the scale of charges so jong as they did not exceed tho amounts fixed in the original order, arid, of course, arguing this, it was undoubtedly the fact that the fixing of the scale of these chaTges gave the councillors a pecuniary interest. Mr Carew: The same as striking a rate. Mr Solomon said the power to strike rates was given by the Municipal ■ Corporations Act, which in respcct to the tramways was superseded by the special act. That being the case, the Mornington Tramways Act distinctly conflictea with section GS of the ATuuicipal Corporations Act. By legislation it was made clear that the councillors were excluded from the provisions of sect-ion GS of the Municipal Corporations Act so far as the tramways alone were concerned.

Carew: Are they also excluded from liability to pay rates? Mr Sim: It is the same as to say they should not pay rates Mr Solomon aipied that the rating was under the Municipal Corporations Act, and not under the Tramways Act at all. It was necessary the councillors should have certain powers, and the only way it was possible to fn: these charges was by resolutions. Counsel for tho.informant would have the court come to the conclusion that such a resolution was voioV Further tliau Hint, if the council's powers of collecting the charges were looked at, the councillors were themselves the people who were to collect and demand those charges, and tho view adopted by tho city councillors was the correct view. Ipso facto they had tho right to travel free. Tho councillors had no pecuniary interest in this matter from another point of view, (or, although the council did not know it, they wero only passing a resolution giving to the councillors a benefit which they lmd without that resolution. The original promoters were private individuals— they were the owners,—and by the special act the council was given all the powers of the promoters. It 'was' not the corporation, lit was the comicil that had tho power. Prima facie, he (Mr Solomon) contended the ease absolutely failed because Mr Aunand could not he said to have taken any part in the discussion. Ho (Mr Solomon) had put all the views of the cose before the court in order that tho whole thing might be thoroughly understood. The words of the statute must he given their ordinary grammatical meaning. The section had been law in England for .von- many years, and no one suggested anything el'so than that meaning. To take part in a discussion

p. man must discuss something, and it was not, as Mr Sim suggested, taking part in a discussion to put the motion to the meeting. 11l reply, Mr Sim said, with regard to the question of whether Air Aniiand tool; part in the discussion, he (Mr Sim) submitted the fact of presiding at the meeting and putting the .matter to the vote and then declaring the resolution carricd, was taking part in the discussion on the matter. Otherwise it might happen that a councillor could propose a resolution and say nothing in support of it, another councillor'would second it and say nothing, and nothing was said by aiiy councillor. The resolution would bo put and carried, anc) nobody took part in any discussion, and, accord-, ing to Mr Solomon, the resolution was passed without discussion. A councillor might take uo part in the discussion, and not vote; in that case section 08 would not apply. The distinction was that Mr Annand was presiding at tho meeting, regulating the meeting, putting the motion and declaring it carried, and that was, he (Mr Sim) submitted, taking part in the discussion; otherwise tliero might bo tho absurdity of having a resolution carried and nobody taking any part in the discussion. It was not necessary'that the Mayor should express his own views on the subject at all. He took part in tho discussion if he took part in the ventilation of it, and he certainly assisted in the ventilation of it if ho put the motion to the meeting. With regard to pecuniary. interest, tho effect of what the Mayor and councillors did was -to present themselves with what was, in fact, a perpetual season ticket on tho tramways. Mr Carew: JJot perpetual. Mr Sim: No; perpetual as long as they- hold office. Continuing, Mr Sim said it was common knowledge that some people paid a good many pounds a year lor such a privilege, and it seemed to him (Mr Sim) incapable of argument that it was not pecuniary interest. There was no suggestion that the object of this resolution was to confer upon councillors the right of travelling upon tho tramways when cngagcci in council business. The point was that tile free passes enabled tho councillors to travel without payment. Tho privilege was something, and it was a privilege- for which somo people paid a considerable sum of moucy, and the presumption was that if thoso gentlemen conferred this privilege upon themselves they were conferring upon themselves something that would bo of some use to themselves. If the court was to speculate in the matter at all, it must say that they conferred this privilcgo with tho intention of using it By virtue of the resolution they obtained a privilege which certainly had a pecuniary value, and whether tho value was large or small depended upon the extent to which they used the passes. If Mr Annand did not use the pass ho would get no benefit, but it would be a valuable consideration in law. To bo a pecuniary benefit it would have to bo of some value in the eyes of tho law. Mr Solomon had referred to the case of Nell v. Longbottom. It was held there that the Mayor was not. entitled to vote for himself as Mayor because there was a- salary attached to the office. Tho free passes constituted a privilege of pecuniary value, and were, no doubt, used by all these councillors to save their pockets, until they rescinded the resolution. Mr Solomon's next argument referred to the Tramways Act of 1001. Under section 5 tho corporation was empowered to acquire, and section 0 was to vest in the corporation. It was true t]io corporation had to be managed by the council. His learned friend relied on what was d!o:io by the council at that meeting a3 the fixing of charges under the powers conferred by the act.—lie (Jb Sim) submitted it could not bo construed in tint way. -The councillors granting a remission to themselves could not be regarded as fixing the charges. Mr -Solomon: I think the council must fix them. I think they (the charges) must bo reafiirmcd.. I don't think the council has any

right to chargo until they reaffirm the scats of charges adopted by the company. By _silence tlio council lias adopted tho former Ecale, ana I do not sec that they (the council) lias power to charge Tares until it affirms the scale. . Mr Sim: And the people have been paying without objection! Continuing his reply, Jlr Sim said the resolution could-not be regarded a3 fixing charges. It might be that councillors, when requiring to travel- on municipal business, might be entitled to travel free; bu» that was a very different tiling from conferring upon themselves'the privilege of travelling at all times free o[ charge. That resolution.was not a fixing of charges, nor was it exercise of right of management; but it was, in effect, putting in their own poclwls money belonging to the corporation, whose trustees they were. Mr Solomon had referred to the city free passes. He (Mr Sim) did not know whether it was the practice to use them for anything 1 else than municipal business. At all events tlio City Council did not pess a resolution; it managed it without. The City Council evidently regarded the matter as a pecuniary benefit, for it did not pass any resolution. The position of Mr Annand and the councillors with their free passes gave them the right to travel free during the time (hey held office, without paying fares, which other residents of Mornington had. to pay. Mr Solomon said the important of the question justified his replying to Mr Sim, who had suggested that, with regard to taking part in the discussion, Mr Annand hud given the encouragement of his presence; and further, (hat if his (Mr Solomon's) view were correct there might be a resolution proposed, seconded, and carricd without discussion. greater part in a discussion could anyone take than by moving a motion? AVliut was meant by tho section wis that the mayor or councillor must not influence tlio mutter OU6 wtiy or another. It was expressly shown what a mayor or councillor must not do. If Mr Sim's view was correct, what was the objcct of putting in the words "or vote"? .If taking part in .1 discussion meant taking part in the construction, then the word; "take part in the discussion " covered everything. The section was never aimed at anything like what Mr Annand had done. If a. motion was before the council the mayor must put it to the vote. If it n.fccis hint personally lie cannot voto on it or discuss it; he must put it. Mr Clarew: If he puts the question he assists in bringing it about. He could refuse to put it, and then the procedure would be to apply for a mandamus of the Supreme Court to compel him to put it. Mr. Soiomon aaid it might be that Jlr Annand did something he should not have done, but lie bad not taken part in the discussion or voted. A thing could only have a,, money value which could be sold for money. It was altogether different from a valuablo interest. Further, there was absolutely 110 evidence before the court that Mr Anntind over used the tremens, or even that lie lived in Mornington. This closed the case,. and tho Magistrate intimated that lie would take time to consider his decision.