The Disputed Taieri County Election.

Otago Witness, Issue 1584, 1 April 1882, Page 23

The Disputed Taieri County Election.

RKGINA V. CAREW AND CULLBN. In this application for prohibition heard at the Supreme Court on Monday, before Mr Justice Williams, his Honor pronounced the, following judgment : — " It appears that at an election for a member, of the Taieri County Council there were two candidates— Mr James Cullen and Mr John Grahani. 'On the 16th of November last the returning-officer declared the' result of the' poll to be a majority of three for Mr Cullen, and declared him duly elected. Within 14 days after the declaration of the poll Mr Graham ■ filed a declaration in the Resident Magistrate's Court in terms of section 48 of 'The Regulation of Local Elections Act, 1876,' alleging that a person not. entitled to vote at such election gave four votes. An inquiry was accordingly held by the Magistrate, who found that the' allegation was proved, and declared Mr Graham to be" duly elected and the election of Mr Cullen to Jbe void. Within 14 days after the declaration by the Magistrate, but considerably more than 14 days after the declaration of the poll bythe returning-officer, a declaration purporting to ,be in pursuance of the 48th section of- the Act, and made by Mr Cullen and two electors <?f the Taieri County, was filed with the , Resident Magistrate complaining that two persons (William Jenkinsand Thomas M'Leod) who wereno't entitled to vote had voted for Mr Graham at the election', and "also, ( that owing to' certain irregularities as defined by the first parj; of the 50th section of the, Act having taken place, the election .was void altogether. .The Magistrate held^an inquiry into these.allegations, ana found that the' alleged irregularities had not taken place, but tljat neither Jenkins nor MJLeod was entitled to vote,- ana.siat on' striking off these votes given for Mr Graham Mr Cullen appeared tojhave the highest number of votes. The Magistrate accordingly declared Mr Cullen to be duly elected, and the election of Mr Graham to be f void. At the hearing the jurisdiction of the Magistrate to proceed with 'the case was' raised .bj| Mr Graham's solicitor ; but the Magistrate overruled the objection, and also" directed that the casts of the proceedings should be paid by Mr Graham. Mr Graham now comes to this Court for a writ of prohibition. , The question to| be determined is whether upon the true construction of section 48 of ' The Regulatiori of Local Electioiisi Act, 1876, 'thB. time' for presenting a -petition complaining of an election is limited to a period of 14 days after a candidate has been declared duly elected by ,the returning-officer ; or whether, in the event of a petition having been presented to and heard by the Magistrate in terms of section 48, and the Magistrate having declared that I the prior election was void, and that some other s candidate was> duly elected, a petition against the candidate so declared elected by the Magistrate can be presented within 14 days after 'such declaration. The question turns upon, the meaning of the words ' after any election, in section 48.' • Now the wholeof the ' prior part of the Act relates to elections and to the conduct of elections: It set's 6ut in detail how an election is to, be begun,' carried on, and concluded. The 7th section provides that the election is to be held by the returning-officer, the sections following prescribe how it is to be j conducted, and the 35th section prpvides that | the returning-officer is to declare the candidates who have received. , the highest number of votes to be duly elected. The sections from 36' to 47 (inclusive) make provision for matters auxiliary to elections, and for punishing offences committed in connection with elections^ , After ■these sections we find a separate part of the Act' headed 'Of Disputed Elections,' and the natural inference would be that where an election has taken place under the former part bf this Act this latter part is to provide for cases .where disputes arise in reference to such an election. On reading section 48 this inference is confirmed. Section 48 is as follows : — " If within 14 days after any election any candidate and two electors, or any six electors, make and sign before a Justice a declaration in the form in the, sixth schedule, and 'file , the same in any Resident Magistrate's Court in the district in which such election took place; or if there is no such Court' in the district, then in the Resident Magistrate's Court nearest thereto, the Resident Magistrate of such Court, shall hold an inquiry as to the matter alleged in such petition, and upon due hearing of the case may declare such election, or the' election of any candidate thereat, to be void, and may declare any other candidate to be duly elected, subject to the following conditions.' Now 'the word 'election,' where it first occurs in the section, obviously refers to an election as de- i scribed in the previous part of the Act; and the words 'such election,' occurring later in tho section, show that the word where so used has the same meaning as it has at the commencement of the section. The wording of the section negatives the supposition that the inquiry by tho Resident Magistrate is a part of tho election. The section assumes that the election is over, and provides for what is to be done in the event ©f the election being disputed. So plain is the construction that no one would havo ventured to raise any question on the subject had it not been for a somewhat awkward consequence which such a construction involves. The sections following section ±8 provide for the conduct of tho inquiry by the Magistrate ; but there is no provision in the Act which corresponds to the provisions of thc3lst section of ' The Election Petitions _ Act, 1880," relating to parliamentary elections—namely, that on the trial of a petition claiming the seat for some person, the respondent may give evi«lenco to |_>rovo {.h.it, fclm olootion of I such porson was invalid in the same I manner as if he had presented a petition com3 plaining of such election, The inquiry, there- '

fore, would be limited to the allegations contained in the petition, the' Magistrate appaparently having no power to investigate any counter charges preferred by the respondent. Tho present case is an example of .the result of such a construction. If the Magistrate had no power to enter upon the second inquiry, the result would be that Mr Graham would remain a member, although he had not at the election a majority of legal votes. Mr Cullen was originally returned by a majority of three. Mr Graham petitioned against him, alleg 1"^1 "^ that four, votes were wrongly given to MrGullen. On this petition Mr Cullen had apparently no opportunity of showing that other votes had been wrongly given to Mr ' Graham, and that although the four votes complained of were struck off, still, if illegal votes given to Mr Graham : were also struck of, Mr Cullen would remain in a majority, ,and be entitled to hold his seat. , Now undoubtedly ;it is the duty of the Court to construetho Act so, as to avoid a conclusion of this kind if it is reasonablypossible to do so ;' but at the same' time the Court cannot completely alter the meaning of a section merely to counteract the effect of a legislative omission. It is true that if the literal and grammatical construction of the Act leads to a conspicuous absurdity, the Court may depart from such a construction to avoid a highly-absurd conclusion. In the present case, however, to depart from the literal construction would involve absurdities almost as flagrant as the literal construction itself would involve, and would certainly be a greater departure from the intention of the Legislature, as [manifested in this part of the Act. The intention of the Legislature, clearly, was that a short peried should be limited within which an inquiry into the conduct of an election should be held, and, that the result of such an inquiry should be fatal. If the construction contended for by Mr Haggitt were adopted the consequence would be that there would be no finality. Mr Haggitt contended that a petition could be presented •within 14*, days after the Magistrate on an inquiry had unseated one candidate and declared another duly elected, and further, that the determination of the Magistrate, declared by section 57 to be conclusive, referred only to the matters of fact alleged in any petition. If this conclusion is correct, and if in the present case the Magistrate had the power to declare Mr Cullen elected upon the second inquiry, then after the second inquiry it would have been open to Mr Graham to , present a fresh petition on the ground that two other votes had -been wrongly given to Mr Cullen. If he had established that two votes' were wrongly given, then onfthis third petition Mr .Grahani would have been entitled to be declared elected. After this Mr Oullen might discover two other votes wrongly given to Mr Graham, in which case he would be successful, on a fourth petition. "This might "go on so long as either 1 p&rty could fish out cases of illegal votes. After that ground of objection by' a scries ( of petitions " had been thoroughly exhausted, it would still be open to the las~t unsuccessful petitioner to raise any of the grounds of objection to his opponent contained in 1 the second part of section 1 50.' The petitioner in this last case Having succeeded, the person ousted would still be able to petition again under the 'second fart of section 50 against his successful rival, n a case where several) persons were to be elected and there were numerous candidates it would become, impossible to fix with certainty any limit of time within .which a petition could be presented. Looking at the whole Act, I think -it is clear that the necessity of allowing a respondent to give recriminatory evidence has escaped the notice of the Legislature. ' I certainly do not think ,the Act contemplated that petition after petition should be determined by the Magistrate. It would be, in my opinion, a much more reasonable construction of the Act to hold ,that the Magistrate ex necessitate is justified in hearing recriminatory evidence when offered by a respondent. I think, however" that it is exceedingly doubtful whether, looking at the tenor of section 51, a magistrate would be justified in doing so.' _ That, however, it 'is not necessary to determine. ' For 'these reasons I am of opinion that the rule fora prohibition should be made absolute, with costs against Mr Cullen. Mr Haggitt : It is not usual in cases of prohibition to give costs. It is very doubtful whether costs can be recovered, and on the construction of a doubtful statute, by which, as the judgment admits, a man is ousted from his seat, I think costs should not be allowed. Mr Denniston : As to our, chance of getting costs if allowed, we will take that. The whole matter was "discussed and costs given in Kennedy v. Caversham Road Board. . His Honor : It used not to be the ' practice to' give costs in prohibitions, but it has been decided in English cases, that they can be given. Mr Denniston: Before the Magistrate gave judgment and afterwards we offered to give up any litigation if the seat was declared to be vacant. This > litigation was forced upon us, unless we were willing to lose the seat which the law has now given us. If the question of costs is to be discussed I can file an affidavit to that effect. Ido not think it is a doubtful statute.

His Honor : I should be very sorry to say it' was not a doubtful statute. _ Mr Haggitt : The application is more in the nature of a quo warranto than in the form' of a prohibition. His Honor ; I think in a quo watranto the rule is that if the person who holds the seat does not choose to contest it he is not liable in costs. If he does he is liable.

After further argument, His Honor said that in the case of a quo warranto the relator was entitled to his costs, unless the defendant resigned the office and did not show cause against the rule. The present case seemed to bear a strong analogy to a quo warranto. Had it not been for the statute, the process that Mr Graham would have taken to oust Mr Cullen of his seat would have been by quo warranto, and, had he been successful Cullen would have had to pay costs. He (the learned Judge) did not see why the same rule should not apply here. Costs would be allowed to Graham.