SUPREME COURT. IN BANCO.

Wellington Independent, Volume XVII, Issue 1815, 10 January 1863, Page 5

SUPREME COURT. IN BANCO.

The following judgments were delivered by his Honor Mr Justice Johnston on Saturday, the 3rd instant : Reg. ex relatione Godfrey v. Sinclair and Another. The question raised in this case is one of con-, siderable importance, and turns upon tho true construction of the 2nd, 3rd, and 4th seotions of the " Provincial Elections Act, I80S," as interpreted by the context of that Act, and the provisions of other Acts therein referred to, or whicli ought, as being in pari malerid, to be construed therewith, Aa I understand the case, it will be quite sufficient for the purposes of- the relator, if one of the two votes alleged to have been invalid, be held to be so ; and it will be convenient to test the case by the vote of Thomas Sullon. Now, as I understand, it is beyond dispute that at the time of the election, Thomas Sutton's name appeared on the General Electoral RoU for ihe House of Representatives for the Electoral District of Picton, and that his qualification, therein stated, was in respect of a tenement situ-' ated within the Province of Marlborough, but the description of which contained in that Roll, is sufficient to shew to any one conversant with the Electoral Districts for the Election of fhe Provincial Council^ established by the Provincial Act, (passed under the authority of the General Provincial Elections Act), that the tenement is within the Provincial Council District of Tua Marina, and not within the Provincial Council District of Upper Wairau. Further, .it is not denied that as regards the separate Electoral Rolls made out by tho registration officer for the different Provincial Electoral Districts, under the 3rd and -ith sections of the Act, the name of Thomas Sutton appears in the Roll for the Electoral District of Upper Wairau and not in that of Tua Marina, It seems clear, therefore, that by the act — at '^leasfc a negligent act— of the Registration Officer. $H£he name of Sutton was put upon the Roll for the wrong district ; but there is no suggestion that this was done fraudulently, or purposely, or in consequence of any collusion with the defendants. Then itis urged on the part of the defendants, that inasmuch as the name was on tiie RoU for the UpperWairau District, and by the sth section of the Provincial Elections Act, tbe Provinctal Elections are to be conducted in manner prescribed by '• The Regulation of Elections Act, 1858," the Returning Officer, at the Election could only ask the two questions of the Voter, prescribed by that Act, and was bound to accept the voto. So far, lam disposed to agree with the argument for the defendants. Probably it would not ' have been competent for the Returning Officer to refuse the vote for the reason now assigned against it, as he would thereby have been assuming a judicial power with respect to tlie Roll, which it pro- " bably was not the intention of the Legislature to bestow upon him. But assuming that the Returning Office^ bad no power to refuse the vote, does it necessarily follow, that the vote when given, was a good ono, so as to preclude a candidate, or any person having a right to dispute the election, who had no notice that the voter's name had been improperly placed on the particular Roll, from getting rid of it? I cannot see wiiy that result should necessarily follow. But it is contended on behalf of the defendants, that tho Provincial Electoral Lists made out under sections 3 & 4of tho Act are conclusive on this subject, and cannot bo controverted — that such Provincial District Rolls stand, with respect to the several Provincial Electoral Districts, in pro- , cisely tho same position as the General Electoral Rolls for the House of Representatives, with respect to tlie right of voting in General Electoral Districts to whicli fhey refer, and that the language of the Providcial Elections Act, construed according to the obvious intention and policy of the Legislature, with respect to these matters,—apparent from the provisions of that Act, andofctiers referredto, or in pari materia, — is sufficient to establish this proposition. It is suggested that it sufficiently appears both | from the Act in question, and the provisions of the Registration of Electors Act, 1858, (for Elections for the House of Representatives), that tho policy ofthe Legislature is to make Electoral Rolls conclusive as to the right to vote ; and no j doubt it is so with respect to tho Rolls for the House of Representatives : and ample means have been provided by the last mentioned Act, for the judicial revision and settlement of those Rolls so as to mako it just and expedient that they should be treated asconclusive. Andforthesamereasonthat those rolls are made conclusive as to the right to vote for Members of the House of Representatives for a particular general Electoral Division, the samo rolls are by the 2nd section of the Provincial .. Elections Act made conclusive evidence of the right of persons whose names are therein, to vote at 'elections of Superintendents of Provinces, and members of Provincial Councils ; and tho only question is, .whether certain other rolls directed to be taken from thorn, are to be conclusive as lo the particular Provincial Electoral District in respect of which the right of voting for members bf Provincial Councils is to exist, — And itis necessary now to examine very closely the language ofthe three sections of the Act. The 2nd section provides, — "The Electoral Rolls for tho House of Representatives shall bo conclusive evidence of tho right of the persons whose names shall be therein as electors, to vote at elections of the Superintendents of Proviuces, and members of the Provincial Councils." Thence itis clear that every person whose name appears on these Electoral Rolls is entitled to vote for members of some Provincial Council ; and TJiomqa Sutton was unquestionably such a person. The 3rd section says, — " A Registration Officer to be appointed by tho Governor for every Province in New Zealand, shall, as soon as the Electoral Rolls for the Houso of Representatives shall have been completed, form therefrom Electoral Rolls for the election of the Superintendent of such Province, and of the members of the. Provincial Council thereof." And that must mean, reddendo singula singulis, that this Registration Officer for a Province (not aßevising br Judicial Officer, be it remarked, but a merely ministerial one), is to make a roll for the election of the Superintendent of the Province, and separate rolls fov tho election of members of the Provincial Council for each Provincial Council District ; and furthermore he is to make those rolls from the Electoral Rolls for the House of Representatives which are the conclusive evidence of the right to vote. Then comes section 4 which pi escribes who arc to be placed (of course by the Registration Officers) on tho several rolls. "There 'shall be placed on the Roll for the election of Superintendent of a Province, every elector registered in respect of any tenement or hereditament situate within such Province ; and on the respective Rolls for the Election of Members of a Provincial Council every elector registered in respect of any tenement, or hereditament, situato within the respective Electoral Districts for tho election of such members." Now, in the first place, the language employed shews that it is imperative upon the registration on the roll for the election of Superintendents, Officer, in tho due discharge of his functions, to put every elector registered in respect of a tenement &c. within the Province ; and it is equally clear that on the separate rolls for each Provincial Council Electoral District, he must put the name of every elector registered in respect of a tenement, &c, situate within such district; and if he were to Tefuse or fail to do so, no doubt this Court could compel him to do so by mandamus. But inasmuch as it does not appear necessary that the Electoral Roll for the House of Repregentatives should specify, in the description of the elector's qualification, the Provincial Council Electoral District within which the tenement &c.

is situate, the Registration Officer has to determine whether the tenement &c in respect of which the elector is to be put on a District Roll is within one Provincial Electoral District or another. Now it may be that a mere inspection of the description of tho property in the General Electoral Roll, and of the Provincial Act defining tho Provincial Electoral Districts, will at once enable the Registration Officer to settle this question. But it may be otherwise ; and all that 1 understand as a matter of fact in this case, is, that if the Regis- | fcrafcion Officer looked afc tho 'General Electoral Roll of Picton," and the Provincial Act, and a map to whichhe had or might have hacf access, he must havo seen, at once, that Thomas. Sutton ought to be put, not on the Upper Wairau but on the Tua Marina list. Still, it would appear, that tho Registration Office^ may have something to enquire into besides •*'_• mere '■'.. inspection of documents ; and the question is whether his action in the matter, right or wrong, is to bo conclusive against tho parties interested. Now it is nowhere said in express terms in the Act, that the Provincial District Rolls so made out are to be conclusive as to tho District within which an Elector on the General Roll ia to vote ; and the very fact that the Geneiai Roll is expressly declared to be conclusive as to the right to vole (whether conclusive as to tho District or not), affords astrong presumption—according to tho best known rules of construction— that the Legislature did not intend these District Rolls to be conclusive on any point. And so far from its being in consonance with the policy of the general Electoral lasv of the Colony, to make the District Rolls thus conclusive, without any further provisions, it seems to me it would be in direct violation of that policy ; for there is nothing in the Act, analagous to the elaborate machinery of the Registration of Electors' Act, for revising the Provincial ,Rolls and ensuring their correctness. I think, therefore, that if the Act had declared tliat such Rolls should bo conclusive as to the right of the Electors to vote for the particular District, a great hardship, and serious consequences might have resulted from the provision,' in the absence of proper enactments for publication of the Rolls; or reasonable notice to the parties interested in them, and for making claims and objections in respect of them. It can hardly bo said that the general Electoral Roll, though conclusive as to tho right of the Elector to vote for a Provincial District, would be so little conclusive as to the District, that the Registration Officer might put the voter on the Provincial Roll in respect of a qualification different from that stated upon the General Electoral Roll. And it surely cannot be considered reasonable tliat Uie Registration Officer should have the power, without any appeal, control or revision, to determine, according to his own caprice, on which of the several Provincial Rolls he should put the name of an Elector on tho General Electoral Roll ; nor can it be supposed that, the Legislature intended to give tho Elector a choice as to the Provincial District in respect of which he should vote. If then the Registration Officer has by mistake, or carelessness, or from any other reason, itn properly put a voter on the Roll for the Election of members of Council in ono Provincial District instead of another, it would seem a great, injustice that a candidate, who, by that Act, is deprived of a majority of votes, should be obliged to put up with the loss of his election without appeal or other remedy. Ido not think tlie Legislature has put him in that position ; and I see no express enactment, no necessary inference from any^ other enactments, and no reason of policy or justice, why the injured candidate or any person having a proper focus standi, for th.c purpose should be prevented from invalidating the election. tf, indeed, tho disappointed candidate or an elector seeking to impugn the election, had notice of the objection to tho list, and forbore to tako such objection to it before the Elector voted — thereby taking his chance of the vote— (and it has been suggested in thia case, but not established in a way to which the Court could pay attention, that such was the case)— that might probably afford a good answer tothe information ; and therefore, although I feel bound, according to my judgment on the facts befor- me, to make the Rule for tho information absolute, I think it but proper to throw out a suggestion of the probable result of the case if itsliould turn out that the dis»p. pointed candidate, or the person who has movod in tho matter, was aware, before the voting took place, of the objection to the lists, and took no steps to get them amended, or to protest .against the Election proceeding while they remained open to such objections. Although the case is by no means freo from doubt or difficulty, I ara of opinion, on tha whole, thatttio law does not prohibit, and that it would be ! unjust were it to prohibit, under such circumstances as those of the present case, the disappointed candidate or any Elector interested in the Election, from calling in question the validity of tho Election on tlie ground that a voter whose | vote turned the Election was put by the Registration Officer on a District Roll where he ought not to havo been, and that he voted accordingly. -. ' It is not necessary to speculate about tho inten- j tion ofthe Legislature on the subject. It may } not have struck the framers of the Act that it might be a matter of the greatest importance to determine in respect of which of several Provincial Electoral Districts, a voter entitled to voto in some one or other of those Districts, should be registered or entitled to vote. It is enough to say that the Legislature having expressed no intenI tion "on the subject, and no reason, appearing | why "these Provincial Districts Rolls should be treated as conclusive, however wrongfully or im- j properly framed, parties interested in the Election ! Beem to have a perfect right to ask this Court that the persons holding the Office of Members of the Provincial Council for the District of Upper Wairau, in consequence of a vote given in respect of that District, by a person who ex concessit ought not to have been put on the Roll for that District, shall not be allowed to continue in their i office without making out their right to it. ' Hide Absolute.

Regina ex relatione Eyes v. Baillie. I

After having considered this case with great anxiety, I cannot profess to have arrived at a conclusion respecting it which is perfectly satisfactory to my own mind, and although it is a ! source of comfort to me to know that the decision I which 1 am about to pronounce may be subjected to the review of the Court of Appeal with but little delay and expense to the parties, I cannot feel very sanguine that the judgment even of that tribunal will be so unhesitating as to prevent the necessity for the interference of the Legislature hereafter to remove doubts in such cases, or possibly for the Constitutional action ofthe Executive Government of the Colony with respect to the particular caso. For it seems to me that the — conjuncture of circumstances which has arisen hero is ono which the framers of the New Provinces Act did not contemplate, and. that in trying to construe that Act and the Constitution Act.together, we have probably been endeavoring to arrive j at the intention of the Legislature with respect [ to a matter as to which it had np settled intention ; Lor at all events the Court is called upon to declare I the operation of these Acts under a combination of ■ circumstances, which in all probability jvas not j thought of by the framers of tho latter Act, but which, if contemplated, would have been provided for by express enactment. And at the outside of my observations, I must remark, that in dealing with the case in the only manner in which this Court can deal with ifc — as raising a dry question of legal construction, considerations of political expediency and public inconvenience can be referred to only for the | purpose of arriving afc the intention of ' the Legislature where its meaning may be ambiguously expressed, or. where tho inferential operation of unambiguous language may be fairly open to doubt. I must further remark, before proceeding to dispose of the question of law, that this court haß nothing whatever to. do with the

question whether the defendant, if he possessed a certain power by law exercised it wisely or unwisely, properly or improperly, whether or not his proceedings were constitutional or no-as the phrase goes— (that is, whether they .were within thespirit of the law), or whether ho capriciously abused the power with. which he was invested by. law. And I allude to this matter only because the affidavits filed by tho defendant contain statements apparently intended to justify his conduct, and I show that, he had good reasons for thinkiug that I ho continued to hold tlie office till his successor was appointed, and also that he believed, or had been advised, that the Council had not been lawfully elected. Witii all this justificatory and explanatory matter tho Court has really nothing to do, although it may be well remarked, in passing, that if the' Council was not validly constituted according to law, the defendant's act of prorogation was a nugatory one. If it was not a Council, he could not prorogue it ; but the question of the validity of the constitution of the Council is not before the Court in this case"; and the only question to be determined by the Court in this case is whether the defendant is now by law the Superintendent of the Province of Mai -borough or not. If he was Superintendent at the time he prorogued the Council, and had power to prorogue it, tho subsequent election by a majority ofthe Council, of another person, to be Superintendent, cannot displace him, a3 tho Council was not in a position to go on to tho election either of a Speaker or a Superintendent. Ifc seems lo me that one of the two last mentioned questions may be at once eliminated from the caso, viz., tho question whether the defendant, if he continued to be Superintendent, had power to prorogue the Council ; for although it lias been suggested in the course of the argument that he might continue to be Superintendent for necessary administrative purposes, but without having such powers as that of prorogation, ancl it would seem very intelligible and reasonable that there should be provisions to that effect, the simple answer is that the Acts are silent upon the subject ; and a Gourt of Law, in construing statutes, cannot supply omitted provisions however reasonable or necessary. Under the Constitution Act there was no necessity for a limitation of the power of a Superintendent, holding offico till liis successor should be appointed, after the dissolution or expiration of an old Council, because his successor would be elected before any new Council came into existence whose" status or acts he could affect by his powers. The oue question, therefore, left to be deter - mined, is whether the defendant was Superintendent at the time of the prorogation. Now it is conceded tliat he was at one dine Superintendent; but nothing very definite has been suggested about the cessation of his offico, except this, that it must \ have been intended by the Legislature that the office of Superintendent of a new Province Bhould ceaso on the expiration or dissolution of the Council, or that at all events he should have no power or authority to deal with a new Council, when it was in a position to elect its Speaker and proceed to elect a new Superintendent. No doubt it might have been inconvenient to provide that the office , of the Superintendent should bo at an end for all I purposes on the dissolution of the Council and that it would have beon convenient to provide that he should continue in office for certain purposes, till his successor should be appointed, but should be incompetent to act as tho defendant has done in | this case. But there are no provisions made in i the New Provinces Act to secure such convenient arrangements or to prevent such inconveniences. The questions which have arise nave, whether the unambiguous language of the new Provinces Act, or the intention of the Legislature to be inferred from the context in order to explain ambiguous language, either provides for the cessation of the office of Superintendent before the appointment of a successor, or repeals the provision of the Constitution Act respecting it ; or whether the language of tho Constitution Act of itself precludes the application of tbe provision to any but a Superintendent elected according to the mode therein prescribed. Now it may bo convenient to deal with the last of these questions first. The Constitution Act, after establishing six Provinces in Now Zealand, by section 2, goes on to provide by section 3, that for each of tho "said Provinces hereby established," and for every Province Hereafter io be established as hereinafter provided, there shall be a Superintendent and Provincial Council ; and the New Provinces Act, sec. 1 s.s. Ft, provides tliat every Province established under the Act shall, subject to the provisions thereof, be deemed to bo a Province established under tho Constitution Act, and by the Imperial Act of last session, (section 7) of the Constitution Act, is mado applicable to all Provinces at any time existing in I the Colony. Then by sec. 4of the Con- [ stitution Act, it is enacted, that upon or before the ( issue of writs for the first election of Members of f the Provincial Council for any Province established ' by or under this Act, the persons qualified to elect f Members of the Provincial Council, shall elect a 1 Superintendent ; and on the termination of the | Council by the expiration of the period fixed for | its continuance or by the previous dissolution thereof, tho persons qualified shall elect the same ! or some other person to bo Superintendent, and so on from timo to time. It is then enacted, that every " such Superintendent," shall hold his i office until the election of his successor; but this is ' made subject to the provisioes that the office may l become vacant; 1, by disallowance by the Go- | vernor of the election within 3 months, in which I case a new election is to tako . placq ; 2, by the death or accepted resignation of the Superintendent ; 3, by the removal of tho Superintendent by her Majesty on an addres3 by a majority of the Council. There are cases therefore under the Constitution Act, in which vacancies might occur, which to some extent might be inconvenient to the public. We come now to the New Provinces Act, 1858, which must now be taken to . have been duly passed, and to havo been intra vires of tho Genesal Assembly, (by virtue of the Imperial Act of the last session of Parliament). The New Provinces Act, after providing for the circumstances under which New Provinces might be established, the definition of the limits, the number of Members of the Provincial Councils — (it being evidently assumed that those Couucils would come into existence by force of the Constitution- Act)— and making some further necessary provisions, proceeds to enact by sec. 9, that " The Superintendents of Provinces .stablished under ! this Act, shall be elected as hereinafter provided;" ancl as far as tha express enactments of the Act concern Superintendents, the matters principally considered, are tho timo and mode of election, tho power given to Superintendents by the llth sec ,of being elected and sitting as a Members, or Speakers of Provincial Councils, and the withdrawal from Superintendents by the ' 13th section of the power of assenting to Bills on behalf of tho Governor. Nothing is said express/;/ about the tenure of Office of the Superintendent; but it cannot be taken that that matter is left entirely at largo ; for it is clear from the language of the 10th section tliat certain portions of tho 4th section of the Constitution Act relating to that important subject were deemed by the Legislature to continue in forco as affecting Superintendents of New Provinces under the new Act. The 10th section of tho New Provinces Act expressly provides that whenever tha office of Superintendent shall become vacant in ang of the cases provided by the Constitution Act, a new election shall in like manner take place on' a day' to be fixed by the Speaker &c. Now tho cases of vacancy provided for by the Constitution Act are tho cases mentioned under the 10th section, wherein tho tenure of offico given to the Superintendent, "until the olection of hia successor,'* is qualified by the provisoes, that the Governor may disallow the election

of Superintendent, and on suoh disallowance signified within three months to the Speaker of the Council, the office of Superintendent shall vacant. 2nd. that Her Majesty may remove the Superintended on receiving an address signed by the majority of the members of the ProvitiI cial Council praying for such removal. Moreover, j vacancies by death or accepted resignation of the Superintendent are provided for.. . If ..then ' the Legislature contemplated the application ofthe provisoes of the 4th section of the Constitution Act to the status and tenure of office of the Superintendents of New Provinces, how can it be said with any shew of reason that they did not intend that the substantive, express, and positive enactment, of which those provisoes were modifications, should apply to such persons. No doubt a. great inconvenience may be the result ; but ifc is one which if contemplated would in all probability have been expressly provided for. On the other Bide, there is great force in the argument adduced on behalf of the relator, Mr Eyes, that the language of the 10th section of the New Provinces Act is imperative, peremptorily requiring the Provincial Council to elect a Superintendent within one month after tho election of the Council, and that this provision would bo nugatory aud delusive if an old Superintendent remaining in office till his successor was appointed, could by exercising the power of prorogation under the Wth section of tho Constitution Act prevent any election of a successor. But the simple answer to that argument seems to be that although ifc may be most inconvenient tliat a Superintendent should have such power, yet the inconvenience has not been provided against by the'Legislatuve.and that even if this Court were satisfied that an omission or oversight of. the Legislature " has been taken advantage of by the defendant in order to exercise a statutory power . in a mauner not contemplated by the Legislature, and even if ifc were clear to the Court, (which it cannot be, as, the Court cannot go into the political merits of the case,) that this power has been used, contrary to tho interests of the public, and in defiance of Constitutional principles, this Court has lib right to go beyond tho well settled principles of construction of Statutes, for the purpose of supplying omissions and defects in legislation. lam obliged to come to tho conclusion on the whole,' that as far as the intention of the Legislature can be discovered from the language of the Acts, ifc was intended that the tenure of office of the Superintendents of New Provinces should be the same aa that of the old Superintendents, and that they should havo the same powers and duties, except whore express provisions of the latter Act introduced alterations ; aud that the inconvenience which has occurred, not having been foreseen, has not been provided against. I do not think that this case can be fairly brought within the principle laid down 'in the ca3o of O'Flaherty v. McDowell, in the House of Lords, which was much, and properly relied on by the Council for the [relator,— for this simple reason, that the intention of the Legislature on the question at issue, is not apparent on tho face ofthe Now Provinces Act. . , , . The principles of construction applicable to this case are thus laid down in the well-known work of Sir Fortunafcus Dwarris on Statutes. " In interpreting the law, judges are to explore the intention of the. Legislature ; yet the construction to be put upon an Act of Patliaraont must be such as is warranted by, or at least not repugnant to, the words of tho Act. Where the object of the Legislature is plain and unequivocal, Courts ought, without violeuce to the words, to adopt such a construction as will besfc effectuate (he intentions ofthe law-giver. But they must not, in order to give effect to what they suppose to be the intention of the Legislature, put upon the provisions of a Statute, a construction not supported by the words, though the consequence should be to defeat the object oi' ih« Act." The public inconvenience and danger which may result from holding the Superintendents of these New Provinces to be possessed of powers which may bo used most oppressively, have naturally induced the Court to examine the provisions of the Acts with critical care, and a desire to construe them if possible, so as to avoid obvious inconveniences, and I think it but right to say that ray ultimate decision differs from my first impression ; and to repeat that the conclusion at which I have arrived is not so satisfactory to my mind as I could wish in a case of so much importance Still, heiog obliged to decide the case to the besfc of my ability, and seeing no reason for supposing that any more light would be thrown upon the matter if I wero to make tho rule absolute for the issuing of the information, I am of opinion that the rule must be discharged ; the relator, however, if he so wishes, will have leave to appeal. Rule discharged. On the Oth January, on the motion of Mr Brandon on behalf of the relator, the Court granted him leave to appeal to the Court of Appeal, at its first sitting on the 10th February, afc Christchurch.