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ELECTION PETITION COURT.

WAKANUI ELECTION. Tuesday, Fbb. 21. (Before their Honors Mr Justice Johnston and Mr Justioe William*.) The Eleotion Petition Court for the hearing of theWakanni petition lodged by Mr Joseph. Iveas against the return of Mr John (fothcart Wason, opened in the Bakaia Town Hall to-day. Mr Stoul, with him Mr Wilding, appearc! for the petitioner, and Mr Button, with him Mr G. Harper, for Mr Wason. Mr E. G. Criap watched the case for the Begis tration Officer of Wakanui, Mr C. P. Cox, and the Beturning-Officer, Mr G. Jameson. Mr Wilding read the petition, of which the following is a copy:— "In tho Supreme Court or >•<•«• Zealand, Canterbury District. " The Election Petition Act, ISBO. "In the matter of the election for the district of Wakanui, holden on the Otl. d*y of Daeembar, 1881. «lb His Honor the Chief Justice of the Supreme Court of New Zealand. " Tke humble petition of Joseph Ivess, of Ashburton, in the Colony of New Zealand, Journalis-, showoth — "1. That your petitioner is a duly registered elector of the Colony of New Zealand, and is duly qualified and entitled to vote at the election of members for the House of Representatives for JS'ew Zealand in the Wakanui district. "2. That your petitioner was dulypropoaed and seconded, and became a candidate for election in the district of Wakanui at the election held on the 9fch day of December, 1881; and your petitioner claims that he has a right to be returned as duly eleoted at the Baid eioction for the said district of \yfl\n.nTii_ "3. That the nomination took place at the County Sakyarda, Ashburton, on the 2nd day of December, 1861, when your petitioner and John Cathcart W«on, of Corwar, sheep former, were duly proposed, seconded, and received as candidates by the BeturniugOfficer. v 4. That the poll was taken on the ninth day of December lash, and the result was declared on tho following day, and the Re-torning-Officer declared that the said; John Oathcart Wason had been daly eleoted member for Wakanui. "5. That the following amongst other persons Toted at the said election who were not qualified to vote thereat, being aliens, namely : — Henry Zander, of Ashburton, clerk ; Johan Olaf Gaarder, South Bakaia, etoreman; 0. Gleastein, South Bakaia, labourer ; Avguste Jaon, of Barrhill, blacktmith. *'6. That the following amongat other persons voted at the said election who were not qualified to vote thereat, being 'pereons under 21 years of age, to wit :—David'Jackson, of Baling, ferryman ; William Jackson, of Baling, labourer ; D. T. Shand, Acton, oadet ; Willi»m Shannon, of South Bakaia, labourer ; John Barclay, of South Bakaia, farmer ; Henry Walker Haslett, South Bakaia, labourer ; James Creey Haslett, South Bakaia, labourer. "7. That the following amongst other persons voted at the said election who were not qualified to vote thereat, being persons who •were not duly registered on the Wakanui roll for tho time being, to wit : — John Barclay, of South Bakaia, labourer ; Hugh Kennedy, Wakaaui, farmer j Thomas Btevenson, South Bakaia, labourer j William Stevens, South "Pttlraift, labourer. "8. That the names of the persons mentioned in the foregoing paragraphs 5 and 1 were counted on tho poll for the said John Cathcart Wason, and they should now be struck off the polL "9. That there were many persons whose votes were disallowed that should not have been disallowed. Amongst others the following :— Patrick Malley, of South Bakaia, labourer, oa the roll as Patrick O'Mallay ; Patrick O'Keefe, of South R -kaia, labourer ; James Santry, of South Bakaia, farmer; Thomas Stevenson, of South Bakaia, labourer. And that those persons would have voted against the said John Cathcart Wason, and two of them would have voted for your petitioner. " 10. That there were votes that had been polled for your petitioner which the Beturn-ing-Officer disallowed, amongst others the following:— William Stevens', of Bakaia and "Wheatstona, labourer; Michael Sullivan, of Beafield and Longbeach, labourer; John Mackle, of Bakaia and Ashburton, labourer ; George Wright, of Beafield and Ashburton, labourer; Jameß Wilson, Wakanui, farmer (980 on roll) ; Hugh B. Kennedy, of Wakanui, farmer; Daniel Buckley, on the roll 130 residential, Wakanui, labourer; and Daniel Buckley, on the roll as 131 David Buckloy, freehold, Ohertsey, farmer " 11. That the election waß improperly held in the following respects:— (a) That names ■were added to the roll after the writ was issued, (b) That the votes were Hot duly gcrutinisad as required by section 41 of the Regulation of Elections Act, 1881. (c) That the names of a large number of claimants were inserted on the roll before the expiration of fifteen days after the reoeipt by the Begistrar of the claims, and after Mi* issue of the roll had been gazetted, (d) T1...b the names of a large number of claimants j-> ere inserted on the roll, whose names were irregular, by reason of their not having attached their signatures thereto, and not being in other respects in accordance with the second schedule to the Registration of Electors Act, 1879. («) That the names of a large number of persons were inserted on the roll without their knowledge, and without their having authorised any person to send in a claim on their behalf, (f) That the names of several persons entitled to vote for the Wakanui district were wrongfully omitted from the roll and placed upon the Electoral roll for another district, namely, Ashburton. (g) That the names of a large number of persons not entitled to vote under the pro* perty nor the residential qualifications were wrongfully rlnced upon the Wakanui roll, and such persons hare exercised their rotes against your petitioner, and in favour of the said John Cnthcart Wason, and that among auch persons were the following: — John Cathcart Wason, Esq., Corwar ; Donald M'Leod, linwald, fanner; Archibald M'Leod, Tinwald, farmer ; William John Fisher, Chris tenure., merchant ; Joseph Good, Aihburton, farmer ; i'eter Good, Seafield, labourer ; John Meiklejohn, ABhburton, dealer; William Henry Collins, Ashburton, timber merchant ; Alexander Oracroft, Wilson, Cashmere, merchant, (A) That though the votes of the persons named in the paragraph of this petition who would have voted for your petitioner or against the said John Cathcart Wason were rejected on the ground that the names of the persons so claiming to vote were not in all respects identical with the printed roll, the votes of the following pereonß, who, it is believed, voted for the said John Cathcart Wason, were allowed to be recorded under similar conditions i— John Gorton, Ashburton, butcher, on roll as ' Gordon' ; Malcolm Miller, ABhburton, farmer, on roll as 'Matthew Miller' ; Edward Stafford Coater, of Bakaia, farmer, on roll as ' Edward Somerton Coster '; William George Eempo, of Bakaia, hotel keeper, as 'William Kempe Kempe' Aaguste Jaon, of Barrhill, blacksmith, on roll aa 'Augusta Jaonen' ; William Shannon, of South Rakaia, labourer, on roll as ' Shannor'; Isaac Moody, South Bakaia, labourer, on roll aa ' loaan Mooding.' " 12. That the Beturning-OfKcer declared the vote 3 at the declaration of the poll to be — Wason, 445 ; Ivess, 435 ; but if the votes wrongly counted for Waaon had been struck •ff, and the votes disallowed been allowed for jour petitioner, your petitioner would have beon declared duly elected, for your petitioner iad a real majority of good anil legal votos voted on the said election in his favour. " Wherefore your petitioner prays thit it ntay be determined that the said John Cathcart Wason was not duly elected or returned, and that his eleotion and return wero, and are, wholly void, and that your petitioner, the said Joseph Ivess, was duly elected and ought to have been returned. And your petitioner will ever pray. "Signed by tho said Joseph > ■ as." To a supplemental list of • ' potions, Mr Button objected, on the groun . that it had ■ot been served within the time prescribed by Bule 9. Mr Stout contended that the respondent mast show that the delay had caused him damage, but tho Court was of opinion that the object of tho rule was that the list nhould be filed, so that any persons in* '-rested in the Ottse might have an opportunity t inspecting Mr Stout then opened his Cos, and said

that ua to the first four paragraphs of tho petition there would be no dispute. They were admitted by both sides. From tho sixth paragraph the petitioner desired to withdraw the nuiuea of Jackson, Haslett and Garfotth. r he petition might be divided into two heads. First, the improper voting ; secondly, the improper making up of the roll by the Registrar. Under the first head votes had been given by people personally disqualified, as aliens and infants ; also, by by people under a property disqualification, owners who were on the roll for property not in the district. In addition, votes had been disallowed whioh should have been received. Since the election four names of aliens who had voted had beon struck off the roll by the Magistrate's Court. Mr Button objected to this, but the Court held that the fact might be received as evidence that the men in question wero aliens, and had been bo found by a Court of competent jurisdiction. Mr Stout continued : Several of the infant voters mentioned in paragraph 6 had also | been subsequently struck of? the roll. On the point of misnomers in the roll, the conduct of the Returning-Officer bad been most peculiar. Men had Dot been allowed to vote for the petitioner for this reason, as in the caae of Patrick Malley, whose vote was refused because he appeared on the roll aB Patrick O'Malley, and James Keefe whose name had been registered James O'Keefe. On this point the Oldham case— 2, O'Malley v. H&rdcastle — had decided that mere misnomer did not disqualify, and went so far as to allow the vote of one Mills who was on the roll under tho name of Bradshaw. Sco the judgment of Mr Justice Blackburn therein. Mr Justice Johnston : The maxim applicable is " Falsa demonstrate non nocet quum de corpore constat." Mr tJtout referred to paragraph 10, complaining of the wrongful striking out of proper votes. For example, one Hugh B. Kennedy, whose name was correctly registered, had voted for the petitioner. Then came another Hugh Kennedy, who had claimed to voie as being the person registered. The Beturning-Officer had rejected both votes — the good as well as the bad. By paragraph 11, he claimed that the Court, even if refusing to give Mr Ivess the ought to declare the election yeid, on 'account of the irregularities committed by the Electoral Officers.

Mr Button objected that the petitioner cor.ld not aßk for the election to be voided, as he had also asked to have Mr Ivess declared elected. The Court over-ruled the object on the ground that the petition oould be a double-barrelled one.

Mr Stout : " The Representation Act, 1881," came into force on Sept. 24 last year. Under that the Registrar (Mr Cox) had a month, given him to make up the roll — to Oct. 24, that was— after whioh came the time to take objections to the names upon it. But these could not be taken after the issue of the writ, the date of which was Nov. 9, and as a matter of fact the roll had neither been printed nor circulated before that date. Thus no time was given in which to object to anything. Worse still, the objector had to give fifteen days' notice of his objection before taking out a summons to try its validity. This, under tha oircumstances, involved an impossibility, and left the whole election at the mercy of the Registrar, who might stuff the roll as he pleased without the possibility of revision before the eleotion. This had happened here. See section f. of paragraph 11 of the petition. By section 41 of " The Regulation of Elections Act, 1881," the He-turning-Officer was bound to scrutinise tho voting papers in the presence of the scrutineers of the candidates, or at least to give the latter notice. This the officer for Wakanui had not done. Section Bof " The Representation Act, 1881," provided for the gazetting of every electoral roll. Now, though a roll of Wakanui electors had indeed been gazetted, yet a supplemental roll, containing 270 names had never been gazetted, and therefore should not have been used at the eleotion.

It waß arranged that before any evidence was called, Mr Button should, by way of demurrer, as it were, lake his exceptions to the legal sufficiency of the petition as it stood.

Mr Button therefore proceeded to demur to each and every paragraph of the petition. He contended that the roll was conclusive as to the names upon it. Stronger language than that of sec. 27 of "The Registration Act, 1879," could hardly be used. That section said : " And the roll so formed, added to, and altered as aforesaid, shall be tho roll for tho time beiug for the district, and the persons on it and no other shall be entitled to vote at the elections." See also the " Registration Act, 1881," and the old Election Petitions Act of 1850, which was still in force.

Mr Justice Williams : Do you contend that the roll is conclusive, even in such a case as that of Mr Alexander Craeroft Wilson, who is alleged to havo been placed upon it in respect of property not in the district at all ? Mr Button would certainly so contend. He then quoted Stowe v. Jolliffe, 43 L. J., 265. On the subject of aliens, the whole history of eleotoral legislation in New Zealand——

Mr Justice Williams : We have heard all this in Lyttelton. Mr Button would go on to the question of the gazetting of the roll. The Act provided thst alterations and additions might be made in the roll at any time, even after it had been gazetted. The so-called supplemental roll came under the head of these alterations and additions, and needed not to be gazetted. On the question of re-opening the decisions of the electoral officers as to identification and qualification, he would argue that where these officers acted judicially, this Court had no power to go behind their acts. Judicial acts could not be questioned except where express provision for appeal had been made. As to the judicial status of eleotoral officers, see Rogers on Elections, page 292. He defied the petitioner to quote a single English case where aa election had been voided »mDg to the misfeasance of a Beturning-OfScer. As to the inconvenience caused by the want of time in which to abject to the roll that would have to be borne. The inconvenienoe of disfranchising Wakanui by declaring the roll bad would be much greater.

Mr Harper followed on the fame Bide, quoting on the subject of the immateriality of misnomers Beg. v. Thwaites 22, LJ.Q. B. 328, and the interpretation clause of the Regulation of Election /Lots as to the meaning of the word " elector," and contending that the roll was conolußive as to all matters within its four corners, and the judgment of the Returning- Officer as to qualification unimpeachable. Mr Stout argued that if the gazetted roll was conclusive as contended by his learned friend, then the supplementary roll must be a mere nullity. The New Zealand Electoral Acts ought to be construed irrespective of English decisions. "An Elector" did not merely mean anybody on the roll, but anyone on the roll who had also a right to voto. Registration was only one of tho conditions precedent to the right of voting. The Re-turning-Officer's decisions wore not conclusive, see Beet. 41 and 42 of the " Regulation of Elections Act, 1881." If this Court could not go behind the roll the Registrar might hold an election if he so pleased on a totally incorrect roll, and there would bo no remedy. Mr Button replied, quoting sec. 74 of the Regulation of Elections Act, giving power to the Governor-in-Council to repair irregularities in elections. (Mr Stout in opoosition alluded to the case of Beg. v. Teschemaker.) As to paragraph 7 of the petitioner Mr Button objected to the moaning sought by the petitioner to be attached to it. The petitioner wished the Court to construe it to mean that certain persons had voted who had never been registered at all. He (Mr Button) understood it to signify that tho registration of these persons had been improperly effected. He was taken by surprise. As to tho conclusivcnesa of the Heturning-Oflicer's decision in matters of identity, see Knapp v. Omlah, the Canterbury case quoted in Rogers on Elections, page 2SB. Section 42 of the Regulation of Elections Act, 1882, provided that where during the r crutiny of ballot papers the Returning-Ofßcer found two votes had been given under ono name, he ihould reject both. The Court then gavo judgment on the points of law. Mr Justice Johnston said that he was- of opinion that the objections as to aliens pnd infants could not bo supported. After listening to the arguments there and in Lyttelton, he had tome to the conclusion that the Legislature intended that the roll should be conclusive for some purposos, for instance, that when aliens' names are once on the roll, and they have voted, the proceedings should not be disturbed. On this subject aeotion 27 of tho Registration of Electors Act, 1879, was of great importance. The case of Stowe v. Jolliffe also boro on tho point. As to paragraphs 7, 8, 9, and 10 of the petitiom

the Court would hear evidence, but they would decline to go into any but the first two clauses of paragraph 11.

Mr Justice Williams concurred, pointing out that the judgment was intonded to establish the general finality of the roll. The inconvenience of holding that registration was merely one of the conditions precedent to the right to vote ,would be great. In every large district it would be easy to find twenty or thirty cases of persons gotting on the roll, who had no right to be there, and to allow this to vitiate elections would be t o encourage beaten candidates to petition in almost every contest.

Mr Stout then intimatod that he would first call evidence on paragraphs 7 and 10. He called William Stevens.

Two men at once walked towards the witness box.

Mr Justice Johnston: Who are these y.hioh is William Btevens?

Mr Stout: Both, may it please your Honor. (Roars of laughter.)

William Stevens (No. 1) deposed : I am a farm labourer, and live at the new settlement up the river, South Rakaia. I spell my name 8-t-e-v-n-8, not v-e-n-s ; that's the way I spell my name. I can't write. I sent in a claim to vote. I never lived at Wheatatone. I don't kcow nothin' about Wheatstono, or where it is. I voted at South Bakaia in the Wakanui election.

By the Court : I don't know whether lam on the roll or not. I Bent in my name, at least my employer did for me. Cross-examined by Mr Harper : When I voted my name was asked. I can't tell who the gentleman was who asked for it.

0. P. Cox : I ana Registrar of electors at Wakanui. I produce the roll in force at the late election, and on which appears the name of Stevens, William, of Wheatstone, labourer, residential qualification. The name only appears onee — number 874. I produce no claim to vote by William Stevens. I have had no notice to produce any. On the old Coleridge roll there , is a name, William Sterens, of Wheatstone. The name was transferred from the old roll to the Wakanui roll. Hence thero was no claim ever sent in.

Alexander Rutherford, in the employ of the Clerk of the Writs, produced intact a parcel forwarded by the Returning- Officer to the Clerk of the House of Representatives, containing rolls and ballot papers. After considerable hesitation, and much consulting of Acts, sections, and schedules, the parcel was duly opened. Mr Butherford sworn, called attention to a smaller parcel contained in the larger one, endorsed by the Beturning-Officer as containing the rolls and papers used at the Wakanui eleotion. Bolls taken ont.

William Stevens (No. 2) : I live at Wheatstone, am a labourer, and have lived there about six years. I voted at Wakanui election at the Longbeach polling-booth. I spell my name S-t-e-v-e-n s. Have never been on any other roll, but have been on this one come time.

Hugh Kennedy was called, and again two witnesses appeared, each claiming to be the real Simon Pure. Amid much laughter one was selected.

Hugh Kennedy, farmer : I live at South Wakanui. I have no middle name. I voted at the County Saleyards, Ashburton. I used to be on the old Coleridge roll. On polling day several people asked me whether I was going to vote. I know Mr Stanley Bruce asked me. About what time — I couldn't positively say — about two o'clook. He didn't ask me to vote. I asked him about the B. on the roll against my name. I had a look at a roll in Mr Wason's Committee-rooms. I had some doubt on that point. Cross-examined: I live in the district, between Ashburton and the sea. I was not asked what my name was by the ReturningOffioer.

He-examined : I went into the booth with. Stanley Bruce. Hugh Bargin Kennedy : lam a farmer on a small scale. I voted at Longbeach polling booth. I saw my name on the rolL I sent in a claim to vote ten months before the election. I sign my name "Hugh B. Kennedy." Cross-examined : I have lived at Longbeach for nine years. I never was at Wakanui. Mr Cox recalled and sworn : There were two Hugh Kennedys on the roll— one with a 8., which I took from the Coleridge roll. I am afraid I made a mistake ; there seems to be only one. Here is a claim to vote, signed "Hugh Kennedy, South Bakaia."

Hugh Kennedy, recalled, said this was not his signature." Daniel Buckley, farmer, of Kyle, Wakanui, deposed that he was owner of section 27247 and 27248. He said : I have a nephew, Daniel Buckley ; I know of no David Buckley. I am the man who appears on the roll as David Buckley. I votad at Seafield. I knew before the election that there was a mistake. I went to enquire about it. The Clerk looked up the number of my sections, and then crossed out David and wrote Daniel on his list. I voted as Daniel Buokley. The offioor called out my same and I wont in and voted.

Daniel Buokley, of Wakanui, labourer, nephew of last witness : I voted at the saleyards, ABhburton. I was registered.

From a pair of Thomas Btevensons, one deposed that he lived at the village settlement, South Bakaia, and voted there at the election. Had claimed to be registered about six weeks before the election. He added : Mr M'Millan, Mr Wason's manager, wrote the claim and I signejd it. I can write a little.

Thomas Stevenson (No. 2) : I live at South Bakaia. Am a labourer. Made a claim to vote. Signed ib. "Do I write P No; I work." The Beturning-Officer refused to let me vote at the eleotion. He said there was only one name. Malcolm Millar, farmer, of Ashburton North, deposed to having sent in a claim to vote. My sections are put down as 8102, 10954. "I have a lot more sections which might have been put down." (Laughter.)

Mr Cox (recalled) : Malcolm Miller is on the Ashburton roll for three sections. I presume the last witness is the man.

To Mr Button : I believe that the Matthew Muller on the Wakanui roll is also intended for Malcolm Miller.

Be-exatnined : On the old Coleridge roll appears the name of Matthew Muller, of Beach road, farmer; also, on alater Coleridge roll, that of Malcolm Millar, of Ashburton, farmer, sections 8102,954. Malcolm Millar (recalled) : There was another Miller in the district ; he is now in Dunedin. I saw Matthew Miller on the advertised roll, and went to correct it, John Barclay, farmer, of South Rakaia : My name is John Barolay, but I am generally known in the district as John M'Phail. My stepfather's name is Alexander M'Phail. I sent in a claim as John M'Phail. I do all business bb John M'Phail.

Mr Stout called attention to the faot that this claim appeared on the face of it to have been added to the roll after the issue of the writ.

Mr Cox : All claim b received up to date of writ were at once put on the supplementary roll. M'Phail's claim was roceived on the 7th. On the 10th I reoeived notice of the writ. I put none on after the issue of the writ.

At 5.45 the Court adjourned until 10 o'clock to-day.

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Bibliographic details

ELECTION PETITION COURT., Star, Issue 4316, 22 February 1882

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ELECTION PETITION COURT. Star, Issue 4316, 22 February 1882

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