THE BRUCE LOCAL OPTION POLL.

Otago Witness, Issue 2400, 1 March 1900, Page 9

THE BRUCE LOCAL OPTION POLL.

A RECOUNT ORDERED.

Mr Stratford, S.M., delivered his deferred decision at Milton on the 19th, in the matter of the petition lodged under the provisions of " The Alcoholic Liquors Sale Control Act Amendment Act, 1895," with respect to the local option poll in the Bruce district.

Mr' A. S. Adams appeared for the petitioners, and Mr Sim for the returning officer (Mr Alexander Nelson), while Mr Paterson appeared for Frederick Bastings, an elector, to oppose the prayer of the petition. '* Mr Stratford delivered his decision as follows : —

With regard to the preliminary objections raised by counsel for <the Keturning Officer and Mr Bastings (an elector), I am of opinion that ihey must all be over-ruled. The first objection is that under the provisions of section 48 of " The Regulation of Local Elections Act, 1876," the inquiry must be held by the resident magistrate of the court in which the petition is filed, and that Mr C. C. Graham, the magistrate who appointed the time for the inquiry and^gave notice thereof, acted without jurisdiction. Now, 'a^, was pointed out at the hearing, the constitution of the* Magistrate's Court has been very«much altered by "The Magistrate's Court Act, 1893:"" By the act of 1667 provision was made for the constitution of districts to be called Resident Magistrate's Districts, and each Resident Magistrate was appointed for a particular district "to exercise his office therein, and to hold courts in and for such district " ; and '" the court " means " A coxirt -held before the resident magistrate appointed It was such a court as this, having a limited territorial jurisdiction, that was contemplated by section 48. The act of 1893, -however, simply enacts that (section 11) that "there shall be within the colony Courts to be called Magistrates' Courts," and the Governor is empowered to appoint " fit and proper persons to be magistrates within the colony who shall preside in such Courts." The change introduced by the act of 1893 is analogous to that made in the Supreme Court by " The Supreme Couit Act of 1862/' which declared that the jurisdiction of each of the judges should extend over the whole colony; whilst under the provisions of " The Supreme Court Act, 1860," each judge was assigned to a particular district, -and he had no jurisdiction outside that district. A stipendiary magistrate under the act of 1893 can now sit in any Magistrate's Court in the colony just as any judge of the Supreme Court may sit in any of the judicial districts -into which the colony is divided. The next objection is that the provision^ of section 48 of " The Regulation of Local Elections Act, 1876," requiring seven days' ■notice of the holding of the inquiry to be given' has not been complied with, and that consequently the court has not jurisdiction to hold - the inquiry. The inquiry was fixed by Mr Graham, S.M., for the 3rd of January, and steps were taken for the due publication of the notice, but in consequence of the occurrence of a holiday the notice was published only six days toafo^e the day fixed for the hearing. Now it will be, observed that the duty of giving the prescribed notice is cast upon the magistrate, and it [would be' ah extraordinary thing if the law we're such than an oniission on the part of a magistrate to give "the proper notice deprives him of jurisdiction, such a conclusion , would not be in co.nsonance with common-sense, and I do not think it would "be in accordance with law, as the following passage shows :—" Where the principles of a statute relate to the performance of a pubHc duty, and to 'affect with invalidity acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, they seem to be', generally regarded as mere .instructions for the guidance and government of those on whom the duty is imposed." — (Maxwell, p. 528.) lam of opinion that the court must be guided by the same principles in dealing with the difficulties and objections arising out of the provisions requiring the hearing of the inquiry to be commenced within 14 days after the filing of the petition. With a view to complying with this provision, the S.M. fixed the 3rd day of January as the day for tHe hearing ; but_ in consequence, I understand, of the insufficiency of the notice having been pointed out, he did not attend, and the clerk of the court, presumably under instructions from the S.M., declared the inquiry adjourned to 17th January, and then the S.M. gave fresh notice of the inquiry for that date. In consequence of the detention of the. magistrate at some other court on the 17th the clerk declared the inquiry adjourned. It is now contended, first, that the adjournment by the clerk on 3rd of January did not constitute a commencement of the inquiry within the 14 days, and, second, that the clerk had not the power to adjourn the inquiry. I am of opinion that the enactment requiring the inquiry to be commenced within 14 days is merely a direction for the magistrate analogous to that as to the seven days' notice, and that on the principles above stated this objection is unsustainable. ,To hold otherwise were to conclude that a pro.vision • intended to secure' for the petitioner a speedy remedy may be converted by a mere accident, of by an omission on the part .or an official entrusted with, the administration of it, into a means of depriving the petitioners of all remedy. Nothing but the clearest expression of such an intention on the part of the Legislature would justify such a conclusion, and " The enactment must be read (as all enactments are), subject to their not being made absurd by matters which never could have been within the calculation or consideration of the Legislature" (Maxwell, p. 528). The act gives the petitioners a right to have the determination of the court as to the matter in dispute — namely, the result of the poll, — and it is imperative on the court to determine the matter in dispute, and all the other provisions referred to are subsidiary to this main purp6se, and merely directory. Whether or not the direction as to the seven days' notice has been strictly complied with or not, it cannot be suggested that ample notice has not been given, the S.M. having failed to proceed with the inquiry within the 14 days, and literal compliance with the act having become impossible, it •was the duty of the magistrate who undertook the work to proceed with the inquiry as soon as practicable after the expiration ol the 14 days, and this has been done. On .this view of the law "it becomes unnecessary to decide whether the clerk of the coiyrt had power to adjourn the inquiry, -the question is not free from doubt, but the probability is that he has such power, The. j>etition is to be filed in the Magistrate's Court, it is to be heard by a S.M. sitting in the 'Magistrate's Court, that. court is a court created by *a statute which provides certain necessary machinery for carrying on the work of the court, one of these provisions is that the court may be adjourned by the "clerk, and there is surely a*fltronc presumption that the cleric of the court liad power tq adjourn this inquiry. I orn of opinion that the petition is substantially in accordance with the requirements of the act; that the petitioners have complied with the law by filing- theft petition in the proper court, wjithin the proper time ; and that it is the duty of the court to see to it that they are nofc^by season of anything not within their control, but within the control of the ministerial and judicial officers of the law, deprived of that which ■the Legislature intended to give them — namely, " The right to obtain the determine of the court as to the result of the poll." Turning to the allegations of the petition we fifed ihrit "Jfce matter in dilute" whuih. the

; petitioners ask the court to determine is whether or not the proposal for reduction of the number of licenses in the electorate should have been declared by the returning officer to have bsen carried. The declaration of the poll made by the returning officer was that no proposal had been carried; the petitioners allege that the true result of the poll was that the proposal for reduction had been carried, and that it should have been declared that at three of the polling places — Milburn, Pukepito, and Waitahuna Gully — the votes for reduction were not counted*; that at these places 127 votes were recorded in favour of reduction, and that if these votes had been counted the result would have been that the returning officer would have had to declare that the number of vote 3 recorded in favour of the proposal for reduction constituted an absolute majority of the votes recorded, and that therefore the proposal for reduction had been carried. It is alleged in the petition that the returning officer had not counted the votes in the manner required by law, and that officer admitted that, with? the exception of -the votes re--corded at Milton, none of the actual votes had been counted by him personally, that he had merely added . together the totals telegraphed by his deputies, deeming that sufficient compliance with the- act. His method of counting votes seems to have bean that contemplated by ! section 17 of " The Alcoholic Liquors Sale Con- | trol Act, 1893," and it was probably that I adopted by the returning officers throughout the colony. But the provisions of the act of i 1893 regulating the taking of the poll were repealed by the Amending Act of 1695, which, in section 8, enacts that " The Returning Officer shall count the votes and reject all the informal votes, and shall ascertain and determine the .result," etc. Standing by itself this section must be taken to mean that the work of counting the votes and rejecting informal votes was to be done by the returning officer and not by deputies.

It thus appears that although a poll has been . taken, the returning officer, through a misconception as to his 'statutory duty has failed to take the proper steps to ascertain and determine the result of that poll. What then is the effect of that mistake? And does the law provide any remedy? This raises the question of the powers of the court under section 7 (subsection 10) of " The Alcoholic Liquors Sale Control Act, 1893," and section 48 of "The Regulation of Local Elections Act, 1876." Now it is inevitable that difficulties should arise in dovetailing the provisions of an act such as The Regulation of Local Elections Act (which deals only with elections) into provisions devised for quite a different purpose — namely, ascertaining the opinion of the electors on such questions as the three formulated for the local option poll; and it is obvious that a wide interpretation must be given to that useful but much-abused formula, Mutatis mutandis. It is perfectly obvious that the remedy provided by section 48 in the case of elections — namely, declaring the election of one candidate void and declaring another candidate to be elected, — is quite inapplicable in such a case as the present. It were indeed a lame and impotent conclusion if the court found itself in the position ,of having no power to do anything but to declare the .poll void when a returning officer makes a mistake in the method of ascertaining the result. The court is not shut up to any such conclusion, however. This court is a tribunal set up by the Legislature for the special purpose of determining disputes as to the result of the licensing poll, and the Legislature must be deemed to have clothed it with the necessary powers in that behalf. If its powers were limited to simply declaring the election void because of such an irregularity as that which occurred in this case, the court- could, not be said to have power to determine the matter in dispute. The matter in dispute in this case is the result of the poll, the question being whether the proposal for reduction was carried or not. The returning officer has declared that proposal not to have been carried, but it is clear on the evidence that at three of the polling places votes given for reduction had, through mistakes on the part of the deputies, not been counted, and there is a probability that, but for these mistakes, the result wMJd have been found to be that reduction had been carried. Is there no remedy for such a miscarriage? It is obvious that the Legislature ■by creating this court and giving to the electors the right to require an inquiry to be held by the court, intended to provide a remedy, and it is plainly the duty of the court to find some means of giving effect to the result of such inquiry by giving eiiect to the votes of the electors. To simply declare the poll void would not be giving effect to the will of the lectors, but to baulk it, and it is the ditty of the court to prevent the mistake of an official from having such a result. The returning officer has published a declaration purporting to declare the restilt of the poll ; this declaration purports to have been made under section 8 of '' The Alcoholic Liquors Sale Control Act, 1895," but that section authorises the making of such a declaration only after the result has been ascertained, but the returning officer (as he himself admits on oath) has not yet ascertained the result of the poll, and therefore he could nob declare it, and it follows that his " declaration " (so called in his proclamation in the newspaper) ha 3no virtue, and in accordance with this view upon the evidence aduced, and admissions made by the returning officer that he has not yet declared the result of the poll in accordance with the provisions of sections 8 and 9 of " The Alcoholic Liquors Sale Control Act Amendment Act, 1895," I hereby decide that the declaration already purported to have been made is null and void and of no effect, and I call upon and direct the returning officer to , ascertain the result of the xjoll in the manner provided by section 8 of the Amendment Act last mentioned, and to make a declaration of the result as provided by section 9 of that act; and to enable him to perform that duty I authorise the clerk of the Magistrate's Court at Milton, as custodian of the packets of voting papers, to permit such packets to be opened by the said returning officer for the purpose of enabling him to comply with section 8 of the said act as to counting the votes, and I adjourn this inquiry, sine die, for that purpose accordingly.