BRUCE LICENSING POLL.

Otago Witness, Issue 2396, 1 February 1900, Page 22

BRUCE LICENSING POLL.

THE PETITION OF THE NO-LICENSE

PARTY.,

An inquiry into a petition under the provisions of " The Alcoholic Liquors Sale Control Act Amendment Act, 1895," was held before Mr H. A. Strattoid, S.M., at Milton on the 24th. The petition was filed on behalf or the no-license party, and was as follows: —

"In the matter of " The Alcoiioiic Sale Control Act, ISD3,' and it& amer-dments under the legulations ot "The Local Election Act, 1876," and 'The Election Petitions Act, 1880,' we, the undersigned, electors an the district of Bruce, hereby declare that, at the poll taken undei- the provisions of ' The Alcohone Control Act, 1593,' and its amendments, on the 6th day of December, 18D9, at winch it was declared that 1518 votes had been recorded for continuance, 169J for reduction ol existing licenses, and 1967 lor no license ; and that consequently no proposal had been carried, was improperly deciaied; and that the true result of the said poll was, and it should have been declared, that reduction had been carried in the said district upon the* giounds: — (1) That in the whole of the said distiict the voting papers had not been pioperly counted, the returning officer having counted the_ numbei- of lines struck out by himself and his deputies on the 101 lof electors used by him and them on the said poll, instead of counting the actual voting paxsers dcpor-icsd.'in the ballot box and lejectmg the miormal votes; (2) that at three at least of the- 'following places — that is to say, those of Milburn, PuKcpito, and Waitahuna G-ully, — the votes recorded for reduction were not counted, and at these polling places no less than 127 votes were recorded for reduction ; (3) that had the above-mentioned votes for reduction been counted the result of the poll would have been that the jetummg officer should have declared that he hud found the number of votes recorded in favour of the proposal that the number of licenses existing m the district should be reduced was an aosolute majority of the votes of those whose votes were recorded ; (4) that we are informed and believe that peisons voted twice at the said poll; and we pray that inquiry be made into the said poll, and that it may be declared that at the said poll the number of votes recorded in favour of the proposal that the number of existing in the district shall be reduced was an absolute majonty of the vot«.r& Yihose votes were ae-(.-ojued, and that tiic said, proposal was carried." Mr Adams appeared for the petitioners. Mr Sim ap£>eared for the returning officer (Mr Alexander Nelson;.

Mi Paterson appealed on behalf o£ Frederick Bastings to oppope the application. Mr Sim said lie willed to laisc the point of his Worship's jurisdiction before Mr Adams opened the case for the petitioners. The fir&t mattei- he wished to draw his Worship's attention to wa& sections 3, 4, 5, 6, and 7, of the Alcoholic Liquors Sale Control Act of 1895. Section 3 provided as to how the poll should be taken; section 4 provided that the poll should be taken the same day a o - the general election; secnon 5 as to what questions were to be submitted to the electors ; secuon 6, what matters the voters shall be entitled to vote on ; section 7, as to how the poll should be taken; and subsection 0 of section 7 provided : — " That if the result of any licensing poll is disputed any 50 electors may require an inquiry to be held in manner provided by section 48 and" the subsequent sections of " The Regulation of Local Elections Act, 1876,' and the matter in dispute shall be determined in the same manner, mutatis nmtandis, as if the said poll were an^electoral poll."' Section 48 of "The Regulation 'of Local Elections Act, ,1876," reads: — "If within 14 days after any election any candidate and two electors, or any six electors, can make and sign be'iore a. justice a declaration in the form ot 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 m the district, then in the Resident Magstrate's Court nearest thereto, the Resident Magistrate of such court shall hold an^inquiiy 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 : — Such inquiry shall be commenced within 14 days after such petition is filed, and the resident magistrate shall give not less than seven days' notice of the time of holding the same, etc." First of all, his Worship woiild see that provision was made that an inquiiy was to "be conducted by a resident magistrate of the court in which the petition was. filed. The petition was filed at the Milton couit on thp 20th December, and of coiirse it would be his Worship's duty to hold the inquiry. Counsel understood, however, that instead of Mr Stratfoid proceeding to hold the inquiry, MiGraham, who was stipendiary magistrate at Dunedin, published an advertisement on the 27th - December giving notice that on the 3rd January he would proceed to inquire into the petition. What he (counsel) submitted first of all .was that Mr Graham had no jurisdiction to deal with the matter at all. It was only the magistrate of the court in which the petition was filed who could hold the inquiry directed by section 48. That was the first point. The next point was, that assuming Mr Graham had authority to deal with the petition, the notice he gave did not comply with section 49 of the Regiilation of Local Elections Act. Section 49 provided: — "Such inquiry shall be commenced within 14 days after such petition is filed, and the resident magistrate shall give not less than seven days' xjublic notice of the time of holding the same." The date on which it was proposed to hold the inquiry was January 3. Notice of the date fixed for holding the inquiry was not advertised till the 27th of December. It was clear, then, that only six days' notice was given instead of seven. Again, counsel continued, the petition was called upon on January 3, and Mr Graham was not present. The clerk of the Magistrate's Court purported to adjourn the inquiry for a period of 14 days. Counsel submitted that the clerk of the court had no right whatever to deal with the petition at all. It was true that under section 45 of the Magistrate's Court Act of 1893, the clerk of the court had power under certain circumstances to adjourn a sitting of the court, but that was not a sitting of the Magistrate's Court, and it was a matter wbich did not come before a court constituted under the Magistrate's Act of 1893. It was a court constituted under the Alcoholic Liquors Sale Control Act. All the provisions of the Magistrate's Court Act were not incorporated in the former act, so that the clerk had no right whatever to deal with the peititon in any way. An additional point counsel wished to raise was this: that the petition did not show on the face of it that it was niade and severally signed before, a justice of the peace, and it devolved upon his learned friend to show that the sixth schedule had been complied with in this respect.

Mr Paterson said that he had nothing to add toilie ably put argument of Mr Sim. He (the speaker) had attended the court on January 3, and did not recognise there was any court held on that date. Therefore his client took up the position that the incident was closed. Mr Adams said, in replying to the arguments of learned counsel on the other side, that the points raised by Mr Sim with reference to the time the inquiry commenced were matters of directory or quasi-directory, and were not imperative in the sense of ousting the jurisdiction

of the court. In support of this, he referred his Worship to the case of the Queen v. the Justices of the County of London and the London County Council, reported in L.R., 1893, 2Q. 8., page 848. He went on to say that, supposing his Worship missed a train, or was suddenly taken ill, was the vindication of the rights of the electors to d expend upon Ins Worship's digestion or upon his punctuality in catching trains? Was it conceivable that through some accident or fault of the court itself, whether palpable or not, the case hould not be heard ? To quote the words of the judge in the case cited, no matter what contingency of this kind arose, " the court continued clothed with authority to do justice." If the contention of his friend were right, the merest accident would deprive the electors of tlneir rights. As to the petition, the justice of the peace before whom the declaration was signed and made had since died, but counsel would call witnesses to say that the signatures were affixed in the presence of the justice, and that it was then brought to the court and filed.

Mr Sim then replied.

His Worship said, with regard to Mr Sim's argument, that Mr Graham had no jurisdiction in this matter at the Milton Court; that since the act of 1893 the term " resident magistrate " and the limited jurisdiction connected therewith were abolished. The magistrate was afterwards known under a different name — that was, stipendiary magistrate, — and his district was New Zealand. Mr Sim's argument on this point, therefore, fell to the ground. Mr Graham was, in fact, the magistrate in charge of that district from December 22 to January 4, and, acting in that capacity, he had advertised on the 9th January in the Times that an inquiry would be held on the 17th January. There were other points raised, however, which should not be hurriedly disposed of. He was very much perplexed as to the meaning of the words " Such inquiry, shall be held/ He did not think it was disputed that, as a matter of fact, the advertisement was advertised for more- than six days. It might be suggested that if the inquiry commenced by the opening of the court before the seventh day, that since the seven days had not expired, the magistrate could adjourn the court till they did expire. Summing up, therefore, he found, with regard to the magistrate, that Mr Graham was quite within his jurisdiction in acting in Milton, that the notice given was six days. He thought this latter was admitted. Mr Adams explained how the notice given was only six days. It aro3e through the newspaper not publishing on the holiday, and a day intervened between the last and second last advertisements. He contended that the mere fact that the notice was a day late did not denrive the petitioners of their right to a remedy. His Worship said that the two woints in doubt were as to the advertisements, and as to whether the proceedings commenced by the clerk opening the court and adjourning it. He would reserve his decision on those points.

Mr Paterson said that he wished to raise another point, and it was this : There was another and a graver defect in the petition, and that was that the remedy asked for in the prayer of the petition was not the appropriate remedy, attaching to paragraphs 1, 2, and 3 of the petition by virtue of the first paragraph of section 60 of " The Local Elections Regulation Act, 1876." The irregularities described in the petition came under the first paragraph of section 50, and the remedy given by that first paragraph was not a new declaration of the votes as asked in the petition, but was simply that the whole election be declared void. The petition was that the petitioners had transferred the appropriate remedy in the third paragraph of section 50, and had applied it to irregularities arising under the first paragraph of section 50. It might be argued by MiAdams that the words mutatis mutandis covered that alteration, but in this instance more changes had been made than were at all necessary — that was to say, the act had been applied so as to suit the petitioners' own requirements. Supposing the petition were granted, and a new declaration made, and counsel's clients had discovered other irregularities entitling them to have the poll declared void, what redress would they. have? The limit of time was long since expired, and they could haye 'no opportunity to lodse a petition. His~W6rship took a note of Mr Paterson s contention, and said he would give his decision on the point raised hereafter. Mr Adams then stated that he .would call evidence to prove that votes were cast for reduction at Waitahuna Gully, Pukepilo, and Milburn, which were not counted, and if they had the result of the poll would be wholly different to that declared by the returning officer. Alex. Nelson, returning officer for Bruce, gave evidence that he conducted the election under the Alcoholic Liauors Sale and Control Act on December 6 last. Milburn, Waitahuna Gully, and Pukepito were in the licensing district/ From the Pukepito deputy-returning officer he had received a telegram stating that the result of the poll there had been — continuance 18 votes, reduction nil, no license 32. Subsequently he received a letter from him declaring, that he had not counted the votes for reduction through misunderstanding the true effect of striking out the top line. . To Mr Sim : Witness was in Milton. He did not count any votes except those at the principal booth in Milton. He publicly notified the result "of the poll in the Bruce Herald on the Bth December. . To Mr Paterson : Scrutineers were appointed by • the no-license party ; none by the publicans. Douglas Armishaw said he acted as scrutineer for the no-license party at Milburn. There were 64 votes in favour of reduction, by the top line being struck out. To Mr Sim: Witness signed the telegram to Mr Nelson in which it was stated that no votes were bast for reduction. Witness was in a hurry, and did not notice the contents of the telegram. Donald M'Donald, Jiving at Milburn, said he acted as deputy-returning officer at Milburn. He afterwards wrote a letter in which he said he omitted to say in the telegram the number of votes cast for reduction. Witness could not remember v how many votes were cast for reduction. Mr Armishaw took a note of the number. George Jackson, living at Waitahuna Gully, said he acted on the 6th December as a scrutineer for the licensing poll. Mr Hanson was deputy-returning officer. There were no votes for redliction only, but, if he remembered right, there were 31 with the top line only struck out. There were 33 for no license, but there were, two of these voted for no license only ; the remainder voted for no license and reduction

To -Mr Sin)>: Witness took no private note at the time of the voting. Witness objected to the mode of the count. When the first paper with the top line struck out came up he claimed a vote for no license and a vote for reduction.

Abraham Morris Barnett, school teacher, at Waitahuna Gully, deputy-returning officer for the electoral poll, said that there were at least 30 votes cast for reduction.

La-chlan; Campbell gave evidence that he acted as deputy-returning officer for the licensing poll at Pukepito. He could not say how many had the top line struck out. There were 30 papers which had either the top line struck out, or the two top lines struck out. The Rev. Mr Miller, Presbyterian minister at Milton, said he was present when the petition was signed. He saw Mr Elder Brown ''sign the petition. All the persons who signed it were electors.

To Mr Sim : He could not remember whether Mr Brown used any words touching the allegations in the petition. This closed the evidence. Mr Sim said he 'just wished to raie© tbi»

point: Assuming Mr Adams's argument watf sound, his Worship had no power to make any) order. He might mid that a. number of votes had been cast for certain proposals, but he hadf no power to over-ride the declaration made by the returning officer. Hb endorsed Mr Paterson's argument that the matter could not be -inquired into ati all, but presuming his Worship had jurisdic- r tion to hold an inquiry he had no power tof .give effect to any decision he might come to. Mr Adams contended that under the Regulation of Local Elections Act the court could! determine what issues were carried, or whether! the poll was entirely void, and it then became* the duty of the returning officer to publish at proper return. His Worship: I have a right to say if thef returning officer has clone his duty, and the* couit has power, if he did not, to direct him to do it.

Mr Adams: It follows as a consequence that' it is the duty of the returning officer to give a 1 declaration on the facts as found by the magistrate. This closed the case, and His AVorship intimated he would reserve his decision.