CLERK UPHELD

Timaru Herald, Volume CXLV, Issue 21183, 2 November 1938, Page 6

CLERK UPHELD

Position of Defaulting Ratepayers Not Entitled to Vote Important Judgment By Telegraph—Press Association DUNEDIN, November 1. A reserved decision of particular importance to local bodies throughout the Dominion, involving their statutory right to debar any ratepayer from voting in local body elections who has paid his rates, but no 10 per cent, penalty imposed for late payment, was delivered by Mr J. R. Bartholomew, S.M., to the Magistrate’s Court this morning. The case was brought against the Peninsula County Council by John Porterfield, of Portobello, and Alexander Porterfield, of Macandrew Bay, farmers. They each claimed from the -Council and John Seaton, county clerk, £5O as damages arising out of the defendant Seaton’s action in placing their names on the defaulting ratepayers' list. This action resulted in their application to vote at the Peninsula County Council election last May being refused by the returning officer. Another aspect of the claim was that Alexander Porterfield, who is entitled to vote in three ridings in the county, was debarred from doing so because the penalty for the rates in one riding had not been paid, even though the rates on the properties in the other two ridings had been paid in full. Upheld by Law The Magistrate found that the action of the county clerk in placing the names of both plaintiffs on the defaulters’ list was upheld by law in his capacity as returning officer, and the actions of each plaintiff accordingly failed, judgment being given for the Council and Seaton. Legal aspects involving the placing on the defaulters’ list the names of rateayers who had left uppaid the additional 10 per cent, charge were reviewed by the Magistrate. He said that all that could be urged against tile clerk was that he came to the wrong decision in the law on the matter which it was necessary for him to decide before compiling his list. He had said during the course of his evidence that before preparing his list he referred to two opinions given by tire solicitor to the Counties’ Association, and reached the decision that he was bound to place each of the Porterfields on this list. Other ratepayers who made default in the payment of the 10 per cent, penalty only were also placed on the list. Mixed Duties “Tire returning officer, in this case the county clerk, has to a certain degree a ministerial duty,” said the Magistrate, “but he is not, to all intents and purposes, a judicial officer. His duties are neither entirely x ministerial nor wholly judicial. They are of a mixed nature. It cannot be contended that he is to exercise no judgment, nor any discretion whatever to the admission or negation of votes. Tire greatest confusion would prevail if such discretion were not to be exercised. On the other hand the officer could not discharge his duty without great peril and apprehension if, in consequence of a mistake, he became liable to an action. I have not found it necessary to adjudicate on the correctness or otherwise of the clerk’s decision, for in my opinion he comes within the principles laid down by the authorities which afford protection to one in his position who regularly discharges his duties. It is not necessary to consider further the question as to whether in any event the local body—Peninsula County Council —would be liable for the default of the clerk in carrying out his statutory duty. Judgment is for the defendants, and costs are allowed the Council for £3/3/to the case of each of the plaintiffs.” The Council and the clerk did not ask for witnesses’ expenses.