THE LYTTELTON SEAT.

Otago Witness, Issue 3757, 16 March 1926, Page 32

THE LYTTELTON SEAT.

MR M'COMBS ELECTED. THE COURT S JUDGMENT. CHRISTCHURCH, March 12. The hearing of the petition of Air James M‘Comagainst the return of Mr M. E. Lvoiia as Hummer tor Lyttelton commenced i.i the Supreme Court to-day before Air Justice St linger and Mr Justice Ostler. Mr R J. U*Regan, with Mr \Y. J Huntei, appeared tor petitioner, and Mr A. T. Donnelly with Air R. H. Livingstone for the respondent. The court was engaged this morning in hearing evidence and argument on the petition, and then adjoured to permit of an examination of the ballot papers. Subsequently a second adjournment was made until 10 a ni to-morrow. Mr M‘Combs, in his statement in support of the petition, objected to the votes of 15 persons on the ground that they were not entitled to be enrolled as electors, not being resident in the district. He also objected to the votes of six persons whose names had been retained on the Lyttelton roll, although they had lived outside the electorate for the three months preceding the closing of the rolls. One vote was challenged on the ground that the voter had not resided for one year in New Zealand. Mr M‘Combs claimed as valid the votes of three persons who had struck out Mr Lyons’s name, but had made other marks on the face of the ballot paper. These votes were disallowed by the returning officers. Three other votes rejected by the returning officer, because of initials or other marks made on the back of the ballot paper, M*Combs also claimed as valid. Thirty persons had voted by placing a cross against one name and 19 of those put a cross opposite M‘Combs’s name. All these votes were disallowed, but Mr M‘Combs claimed they were valid votes. He claimed also the votes of three absentees who were not able to record their votes, and objected to one other which the returning officer had allowed. , Respondent objected to the votes ot eight persons on the gruond that they were not British subjects. He claimed also one vote as having been improperly disallowed. . . .. • Opening for the petitioner, Mr O Regan said that since judgment was given m the Westland petition the issues had been considerably simplified and narrowed. The petitioner approached the court with some degree of confidence. In practically every election held in New Zealand there was a fringe of votes that could be questioned, but this was never done when the margin between the candidates was ample. At the magisterial recount in connection with the Lyttelton election 121 votes had been rejected—3o because of crosses against the names of the candidates. These votes could be classified as follows: — Both names struck out, 40. Neither name struck out, 41. Cross opposite both names, 1. Cross opposite M’Combs’s name, 19. Cross opposite Lyons’s name, 11. Ballot papers rejected because of something written on them, 9. As far as the informal votes were concerned their Honors had to deal with 30 in which the electors were clearly entitled to vote. Of these 19 votes were marked with a cross against the name of Mr M'Combs and 11 with a cross against the name of Mr Lyons. It was the fortune of war. If the votes had been allowed at the recount Mr M‘Combs would have been elected by two votes. Petitioner was also objecting to the votes of 13 persons who were not entitled to be on the roll. They resided in other electorates and voted in Lyttelton, and counsel would ask that their votes be disallowed. Evidence was called by Mr O’Regan to prove the contentions raised about the place of residence of a voter. The points in dispute were place of residence, permanence or otherwise of residence outside tl.e electorate, and details concerning applications for absent voters’. permits. Two of Mr M'Combs’s objections concerned probationer nurses, who, he claimed, had voted in the Lyttelton electorate, where their parents resided. It was claimed that they must vote in Christchurch South, where the hospital was situated. One vote had “luck” written across it. Mr claimed that, because a vote with “Too Irish” written on it had been allowed in the Westland case, this vote must be allowed in Lyttelton. The court adjourned at 12.25 to allow of the voting papers being examined. March 13. Tlie Electoral Court, which heard the petition of Mr J. M Combs against the re-

turn of Mr M. E. Lyons a» member for Lyttelton gave its decision this morning. Mr MCorr.bs was declared elected for the seat a majority of 11 votes, the figures as given by the court being as follows: J. M‘Combs 4900 M. E. Lyons 4889

Majority for M'Combs 11 TIJE JUDGMENT.

Mr Justice Stringer said: “'in this case the court .has acted upon the principles already laid down in the Westland case in deciding questions of fact raised by the evidence whether certain votes could bo validly objected to on the ground that the voters had been illegally placed and retained on the roll. Nine cases of this kind, alleged by the petitioner were admitted by counsel for the respondent, and these votes have been rejected Six cases of this kind the petitioner essayed to prove. With regard to two of these—Archibald William MacPhail and his wife—it was admitted that the proof had failed. With regard to four—Rena Winifred Adamson, Murid Isabel Wiggins, Leslie Tracey, Kiver Aliison and his wife—in the opinion of the court the proof was sufficient, and these votes have been rejected. We think the case of Miss Adamson is distinguishable from that of a medical student, inasmuch as a probationer nurse is required to enter into a written contract of service and residence at a hospital, so that her principal place of resilience is where she has contracted to work and reside.

“Respondent filed objections to the qualifications of 14 voters, but no evidence was offered with regard to nine of thorn, and the want of qualification of the remaining five was admitted by petitioner. The total number of those who were proved—or admitted to lack the necessary qualification was therefore 18. We have carefully examined the voting papers of these disqualified persons, and have deducted their votes from those of the candidate in whose favour t’nev were cast.

“We have also examined the votes, which were recorded by a cross, and which, for the reasons given in the. Westland case, we think were w’ronglv rejected, and have allowed them to the candidates for whom they were intended. The result of these adjustments is that it iR necessary to hear evidence as to the alleged disqualification of Cyril Edward Booth, for which purpose we had reserved leave to the petitioner. We also find it necessary to deal with the three votes referred to in paragraph 4 of the petitioner’s particulars Even if these were declared valid they would not affect the result. With regard to the three votes mentioned in paragraph 5 of the same particulars, whioii we presume to refer to the three papers on which the names of electors were written, we think these were invalid, and were rightfully rejected. With regard to the two votes mentioned in paragraph 7 of the particulars, after comparing the signatures on the applications to vote with those on the enrolment cards we think the returning officer and the magistrate were right in rejecting both these votes, and we see no reason to overrule their decision. It was, in our opinion, impossible to identify either of these votes by a comparison of the signatures.

“The final result is as follows:—James M‘Combs, total number of valid votes, 4900; Melville Edwin Lyons, total number of valid votes. 4889. Majority for M'Combs, 11. We therefore determine that James M'Combs has been culy elected for the electoral district of Lyttelton, and shall so certify to the Speaker of the House of Representatives.

“The respondent must pay petitioner’s costs, and we fix them on the Supreme Court scale as on a claim of £5Ol. We also allow witnesses’ expenses, limited to those cases in which he was successful, and to be fixed by the registrar. Certificates of indemnity will be supplied to all witnesses applying for these.”