THE WAIKOUAITI COUNTY CHAIRMANSHIP.

Otago Witness, Issue 1421, 15 February 1879, Page 7

THE WAIKOUAITI COUNTY CHAIRMANSHIP.

(by ode own eepoetee.) At the Resident Magistrate's Court, Palmerston, before I. N. Watt, Esq., R.M., James Green, of Blueskin, gentleman, was charged, on the information of William Robertson, of Palmerston, that he " on the 2nd day of December, 1878, then being a member of the Council of the Count 7of Waikouaiti, and a nominated candidate for the office of chairman of the said County, voted upon a matter in which he was directly interested, to wit, the election of a chairman for the Baid County, such chairman then being entitled to an allowance or salary of Ll5O per annum, contrary to the 75th section of the Counties Act, 1876." The section of the Act named reads as follows : "No Councillor shall|voteor take any part in the discussion of any matter before the Council in which he has directly or indirectly, by himself or his partners, any interest apart from, or any interest in common with the public ; and any Councillor who knowingly offends against this section shall be liable to a penalty not exceeding LSO for every such offence ; aud on being convicted his seat shall become vacant." Mr Fraser appeared for the prosecution, and asked leave to amend the information by the insertion of words as follows .-—After the words I " chairman of the said county" and before the I word " voted," to insert the word " knowingly" ; and instead of the word after the words "such chairman" and before "entitled," to insert the words "being deemed by him, the said James Green, to be." Mr Haggitt, who appeared for the defence, at first objected to the latter amendment, but eventually it was allowed by consent. Mr Fraser detailed the facts of the case, and stated the grounds upon which the information was laid. At the first meeting after the con* stitution of the County— in January, 1877, namely— Mr Green was elected ohairman of the Council, and a salary was voted to him of LlfiO a year. His term of office expired on the fourth Wednesday of November in the sama year. Mr Green was re-elected nest year, but no vote whatever was made by the Counoil upon the matter of salary, suoh vote, hewever, being required under the termß of the Act. Mr Green went on drawing bis salary after his second election— illegally doing so beyond a Bhadow of a doubt, although that was a question with which the Court had at prssent nothing to do. On the fourth Wednesday in November, 1878, the first meeting of the Council, which had been newly elected, should have taken place, but was adjourned till the 2nd December. At that meeting six members were present, the seventh being ill. There was a contest for the chairmanship— Messrs Green and M'Kenzie being nominated. Three, including the candidate, voted for Mr Green ; three, including the candidate, for Mr M'Kenzie. Mr Green holding office until the new chairman took his seat, exercised' his casting vote in that capacity, and I voted for his own election. There was no new vote as to salary. Mr Graen went on drawing the Ll5O a. year up to 3 1st December, 1878, and in consequence of so doing the present I charge had arisen. The Court must presume 1 from the facts of the case that Mr Green knew the chairman was entitled to Ll5O a yea?, and that when he voted he contemplated a pecuniary interest arising out of his vote. In this way he was directly interested within the meaning of the section under which the information was laid. He had drawn the salary for portion of his new tenure of offioe, and though he (the learned counsel) granted such^ drawing was illegal, and the interest was an illegal one, still he, as chairman, had profited by the drawing of the salary. He would call only one witness to prove the facts. John Smith, County clerk and returning officer, deposed that James Green was elected for the Blueskin Riding as a member of the County Council. On 23rd January it was minuted that an annual allowance of Ll5O be voter! to the chairman under clause 57 of the Act. On. 3rd December, 1877, Mr Green resigned and was re-elpcted. There was no vote lof salary. The JLISO a year continued to be drawn. The next election waß at an adjourned meeting on 2nd December, 1878. Mr Green eat as chairmau at that meeting. There were two candidates for the Chairmanship. For Mr M'Kenzie three voted, including himself ; for Mr Green three voted, including himself ; and by the casting vote of Mr Green, as chairman, he (Mr Green) was elected as chairman for the ensuing year. Cr M'Kenzie wished the meeting adjourned for a full attendance, but that fell through, as did a suggestion that both candidates Bhould retire, which was opposed by another of the Councillors. There was no vote regarding salary. A quarter's salary was due at 31st December, and Mr Green drew it. Cross-examined : The motion Mr Green voted upon on 2nd December was that he be reelected chairman ; then there was an amendment. The amendment was lost, the original motion was put, and was voted upon by Mr Green. Prior to the meeting in December, 1878 there had been an entirely new election. The William Robertson who laid the information had never been County Clerk. Mr Haggitt would raise as a preliminary point the question as to whether the informant had any locus slandi. The 93rd section of the Act required that the Clerk or some member of the Council should alone lay the information. This Mr Robertson, who did not even appear in Bupport of his information, was no dwubt a respectable person, and had the interests of the country greatly at heart ; but he was not tho County Clerk nor a councillor, and might be accused of going out of his way in the matter. But on other grounds he submitted the information must be dismissed. The contention of his learned friend was that Mr Green had voted himself into the position for the purpose of drawing the salary ; but he submitted that no councillor, using his vote in the election of a Chairman, could be be held to be doing so for a pecuniary interest, aB there was no vote upon a question of salary. To the contention that because be had drawn a portion of his salary he must be deemed to have contemplated a pecuniary interest, it might be answered that the intention to commit a crime was not criminal if the act itself was not bo. The whole proceeding had arisen out of a simple mistake in clause 54, by which the question was open to doubt whether the first term of office of tho chairman extended to November, 1877, or to November, 1878. The question arose in the Waikouaiti Council rej garding this interpretation, and Mr Green in ' order to solve the difficulty formally resigned,

and was re-eleoted in November, 1877. The Council did not require to re- vote a salary because the resignation was his own act ; the Council really elected him till the fourth Wednesday in November, 1878, and his salary was a matter for determination by the new Council then elected. It was quite clear that one Council could not vote a salary to their chairman for a period beyond the expiry of their own term of office, and it was possible enough their successors might alter the salary or vote none at all ; therefore in voting as he did, it was clear Mr Green did not vote on any question affecting his pecuniary interest, because there was no question of salary in the vote. The Legislature had not intended to debar a member from voting on a question of his own election as chairman, as if so the present information might have well been laid under section 62 of the Act, which provided that any person holding any office or place of profit under or in the gift of the Council should be incapable of being a councillor. If this language was strictly interpreted, then there could be no county chairman. He submitted, in conclusion, that k in voting for himself as chairman, Mr Green legally exercised his right as a councillor. _ If by accident or mistake he had been paid a salary;) for a period beyond the term up to which his salary had legally been voted, that did not make illegal an act which in itself was legal. It was not an offence to accept money not voted. The only result could be that the clerk would be found to have made a payment which could not be passed by the auditor. Mr Fraser: Do you submit that it was salary ? Mr Haggitt said it was paid to Mr Green as salary. The fact was Mr Green had got possession of L 2 or L 3 never voted by the Council, for the salary up to November, 1878, had legally been voted. Mr Green bad not voted upon any question of salary to himself ; he had only voted himself chairman of the County. If, in the language of Jthe information, " voting upon a matter in which he was directly interested, to wit, the election of a chairman," was not an offence, then deeming it to be an office worth Ll5O a year did not make his act criminal. His Worship said, taking the matter in its strongest view against Green, supposing he thought himself entitle to a salary of L150,0r even knew he was drawing it without being voted, and if he had voted for himself solely to receive the benefit of the Ll5O, while the mere act of voting himself chairman was not illegal or criminal, how could it be made criminal by any belief of Mr Green's? He did not think it could. Mr Fraser said ifc depended upon what was meant by "interest." Mr Watt was of opinion that Mr Green could be held to have no interest, in the meaning of the seotion, in voting for the election of a chairman. He was against Mr Fraw entirely, and the information must be dismissed. At Mr Fraser's request. His Worship reduced bis judgment to writing as follows s " That Mr Green, having either in fact or in law no such interest as is contemplated by section 73, could not make himself guilty of an offence which is not an offenoe by law." It was agreed that the costs should be borne respectively by the parties. A further information, preferred [by William 1 Robertson against Mr M'Kenzie, for the same offence, under the sameßcircumstances and on the same date, was withdrawn. !