THE CHRISTCHURCH ELECTION.
i | MR SAKDFOHD | DECLARED | DULY ELECTED. This morning their Honors Justices "Williams and Denniston, Eitting as an Elections Petitions Court, gave judgment in the petition lodged by Mr E. George against the return of Mr E. Sandford as member of the House of Representatives for the City ofChristchurch. Mr Harper, with him Mr Stringer and Mr Cohen for the petitioner ; Mr Donnelly for the respondent. His Honor Mr Justice Williams read the judgment of the Court, which was as follows :— We are satisfied both on principle and authority that Mr George cannot claim the seat. The whole object of the election laws is to give the constituency a full and fair opportunity of choosing the candidate it prefers. If it is reasonably clear that any person whose duty it is to administer the election law has in the course of his administration of it to acted as to deprive the constituency of its choice, the law has not been carried out. The natural result of the mistake in the notice p.ivea by the Returning Officer fixing the day for sending in of nomination papers was to mislead intending candidates, and Messrs Sandford and Smith were in fact misled by it. If the Returning Officer had yielded to Mr George's objection, and had refused to receive the nominations of Messrs Sandford and Smith, and had returned Mr George, it would have been impossible to hold Mr George's election as good. The constituency, by a blunder of tbe Returning Officer in the performance of his statutory duty, would have been deprived of its right of choice. Tbe right to a seat in Parliament mußt be determined on en« tirely different circumstances from those which govern the right to a bale of goods. In the latter caße the question is the rights of the parties ; in the former the rightß of the constituency are paramount. We should have been prepared to come to this conclusion irrespective of authority, but the principle that a similar blunder will upset even a municipal election was clearly recognised in the case of Howes v. Turner (1 C.P.D., 670). Mr George claims the seat, and, if the results of his candidature in the past afford any guide to the probability of his return iv the future, a decision of this Court setting aside Mr Sandford's return, but not giving Mr George the seat, would be very little use to the petitioner. We have, however, to determine whether Mr Sandford's return should or should not be declared void. In a caße like the preßent, where it is obvious that the majority of the electors have elected the candidate they preferred, the Court should hesitate to set aside the* election, unless it is absolutely compelled by law to do so. The contention of the petitioner ie that.as the nominations of Mr Sandford and Mr Smith were not in time, they never became properly candidates, and therefore that neither of them coulil be returned. 'J hey were, however, accepted by the Returning Officer as candidates, and their names, with that of Mr George, were advertised by him in pursuance of Section 9of the Act of 1890. They, therefore, were the persons from whom the constituency was, in the mode prescribed by law, called upon to choose. There is no reason to Buppose that by tbe action of the Returning Officer any other person was prevented from becoming a candidate. As, owing to the mistake of the Returning Officer Mr George would have had no right to the seat if he had been returned, he was not deprived of any vested right by the acceptance of Messrs Sandford and Smith as candidates. Had their nominations not been accepted, the election could not have proceeded to an effectual conclusion, and the nomination of Mr George would have been rendered futile. If Mr George as well as the other two candidates had been misled, and all had sent in their nominations a day late, it would be difficult to imagine that an Elections Court would afterwards render void the election at the instance of a defeated candidate, or of an elector, unless it appeared that there was reasonable ground to believe that the result of the election had been affected by the error. There is, therefore, considerable force in the contention, based on the reasoning iv the case of Woodward v. Sarsons, 10 L.R.C.P., p. 733, and .the Akaroa case, that, apart altogether from the question of validation, the election is good. Without, however, expressly deciding that point, we are satisfied that the power of validation given to the Governor-in-Coun-cil extends to the present case, and that it has been efficiently exercised. The power is given by the seventy-fourth Section of " The Regulation of Elections Act, 18S1." That Act prescribed the mode of nomination. "The Electoral Acts Amendment Act, 1890," is to be read together with the Act of 1881, and is to be deemed to form part thereof. The Act of 1890 repeals the sections of the Act of 1881 relating to nominations, and makes other provisions in their stead. The proceedings at a nomination are certainly part of " the proceedings at an election," which Section 74 gives power to validate. If Section 74 applied, as it undoubtedly did, to the original provisions as to nominations in the Act of 1881, it would apply also to the substituted provisions in the Act of 1890. In our opinion there was an " accidental misfeasance " both on the part of the Returning Officer in fixing the day for sending in the nominations, and of Messrs Sandford and Smith in sending them in on that day. The words of Section 74 are exceedingly wide, and the Legislature has entrusted the Governor-in-Council with very large powers, which, in unscrupulous hands, might be capable of great abuse. Notwithstanding the Order-in-Council may purport to validate, an Elections Court has, no doubt, power to enquire into the facts, and, if they do not bring tho validation within the terms of the section, to treat such pretended validation as a nullity. There is no need, however, for the Court to place a narrow interpretation upon the section. The intention of the Legislature was evidently to give wide powers, and the Court should give effect to it 3 intention. We think, therefore, that Mr Sandford was duly elected, and shall so certify. As to costs, the mistake, it is true, was in the first instance caused by the Returning Officer, and that has in some cases been held a reason for not giving costs against a party. In the present case, however, the pet itioner claimed the seat, and that after a tolerably clear expression of opinion by the constituency that it did not want him. If, under such circumstances, a person chooses to make use of what jb little more than a technical legal ground to endeavour to force himself on a constituency as their representative and fails, he ought to pay the costs of the proceedingF, and the order will be so, accordingly.
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THE CHRISTCHURCH ELECTION., Star, Issue 7199, 6 February 1892
THE CHRISTCHURCH ELECTION. Star, Issue 7199, 6 February 1892
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