INVERCARGILL LOCAL OPTION INQUIRY.

New Zealand Illustrated Sporting & Dramatic Review, Volume XIV, Issue 831, 8 February 1906, Page 24

INVERCARGILL LOCAL OPTION INQUIRY.

The magistrate last week delivered judgment on the local option petit on, which was dismissed with costs aga’nst the petit’oners. He disallowed four no-Icense votes, reducing the nolicense majority to nine. The chairman said the Court was unanimous in its judgment. INFORMAL VOTES. On the question of informal votes, the magistrate sad: It is contended by petitioners, under the authority of the maxim, “ Expressio Unius est exclus’o alterius,” that as paragraph 1., section 7, of the Act of 1895, is the only provision decreeing who shall not be deemed a voter, who has recorded his vote, the law does not exclude any othei’ voter, whether his vote is informal or not, from being treated as a voter who has recorded his vote. Counsel for petit’oners quoted from the decision of Mr. McArthur, S.M., ’’n the Newtown petit:on, 1902. We find ourselves unable to adopt the view of counsel. The Alcoholic Liquor Sales Control Act, 1895, only dealt specifically with one class of informal papers, those which fa’l to indicate for which proposal the elector intends to vote. Any other informality it leaves to be dealt with by the Electoral Act, 1905. From the inherent diss’milarity of the objects of each poll under these Acts, it is obvious that there must be features peculiar to the licens’ng poll, concerned as it is with certain abstract proposals, which would not wel 1 be dealt w : th in an Act designed expressly for the election of persons. These special features have been dealt with in the Act of 1905, leaving such matters of detail as are appl’cable to both polls to be regulated by the Electoral Act, which provides generaVy for all matters pertaining to an election. The Leg'slature (inter alia), in the Act of 1895. dealt with the manner of voting on the proposals submitted, and with the effect of non-compliance with the statutory d’rections. The purpose was not to define what a voter who

had not recorded his vote is, but to set out the consequences following the disregard of the directions. The Legislature could not have been unm ndful of the fact that the Electoral Act dealt with informalities of other kinds but these it left to the operation of that Act, as a measure, competent to deal in this respect with both e.ections. Mr. McArthur la d stress upon the fact that where (compulsory under the Act of 1902) votes were disallowed because they bore no official sea'., a voter’s otherwise valid vote was rendered ineffect ve through default of the return ng officer, and decided that the elector should be considered as having recorded his vote under the Electoral Act of 1905. Th s argument has no weight, for an unsealed paper is not now to be treated as informal unless there is reason to believe it ; s fraudulent (section 137). The language of the Act of 1905 seems to regard the recordiig of a vote as the act of the voter (sections 125, 126, etc.), and this somewhat modifies the conclusion of Mr. Justice Denniston in the Ashburton case, that it is the returning officer who records the vote; but we do not think it has affected the op’nion expressed by the learned judge: “That informal, and therefore, ineffective voting papers could not be treated as votes actually recorded.” A voter who, after receiving the paper, correctly marks "t, and does iothing to destroy its efficiency, and places it in the ballot box, has recorded his vote. If he_fails to correctly mark it, it is voided under paragraph 1 of the Act of 1895. If he cor reefy marks it, but does something or permits someth ng to be done which destroys its efficiency, can he be said to have recorded h’s vote? He has attempted to vote, and has deposited a paper in the box, but because that paper must by law be rejected when ’’t comes before the returning officer, it ’s not, and never has been, a vote, and no vote can be said to have been recorded. How then can the person who placed that paper in the ballot box be considered as a voter who has recorded his vote? Moreover, if, as contended, an informal vote is a recorded vote, it must be on record, and applied to one or other of the several proposals, as provided by section Bof the Act of 1895. What the Legislature asks is the expression, by means of the ballot paper, of the will of the electors in respect to ’•ertain proposal, and that proposal which expresses the will of the stipulated majority is deemed to be carried. The law disregards the voice of an elector who speaks througn an informal paper, and he cannot be regarded as forming one of the total number of voters from whom the prescribed majority is obtained. The maxim, “ Expressio unius est exclusio a’terius,” does not in our ’’pinion afford a guide to the construction of paragraph 1, section 7, of the Act of 1895. We consider the appropriate rule of construction forms an exception to the maxim, and is to that class of cases where “ when words used by the are general and the statute is only declaratory of common law, it shall extend to other persons and things bes’des those actuary named.” The last clause of sub-section 1 would appear to have been inserted by the Legislature only from motives of caution. Dr. McArthur in his judgment states that the misfeance or nonfeasance of a returning officer cannot, in his op’nion, affect the recording of a vote which is soMy the act of the voter. To deprive an elector of the privilege of recording even an informal vote ’s apparent’y referred to as an injustice where the deprivation proceeds from the act or default of the returning officer, and yet the effect of the contusion ultimately arrived at, treating informal as recorded votes, works grave injust'ce on all casting informal votes for either or both of the proposals, reduction or no-license. Informa 1 votes intended to be cast for reduction and no-license are, for all practical purposes, treated as having been cast for continuance. Here we have construction, which attempts to remove or mitigate a supposed injustice by creating an actual one, and before such a conclusion could be justified we should require plain and unambiguous language. The language of the statute is not only unamb : guous, but points in a contrary direct’on. It is urged that the returning officer—(l) Counts votes; (2) rejects a 1! informal votes; (3) ascertains and de+erm'nes the result. He does not reject, then count, etc. In our opin’on the true construction of section 8 does not ind'cate tbe sequence of the Acts, but rejection takes place during the process of counting

The construction of section 8 contended for requ res that the connective '• and” used in the first and second lines should have the force of “ then,” a construction which is certainly strained. ABSENT VOTERS’ PERMITS. Wth regard to this question the Court has come to the cone usion that such permits allow ho’ders to vote on the licensing poll at any po ling booth at which they record votes under the Electoral Act. Sect on 7, sub-section A of the Act of 1895, provides that the returning officer shall take a poll in the manner provided by the Electoral Act, 1893. This Act being repealed, we must read the Electoral Act of 1905 n its p'ace (see section 14, Interpretation Act, 1888). This Act provides that the ho 1 dor of an absent voter’s permit may, though outside his electoral d strict, record his vote at any polling booth, and then directs how the vote is to reach the returning orcer of h’s own district. There is no specific provision in the Licensing Act or in the Electoral Act, 1905, authorising the hefder of a permit to vote outside his district on the 1 censing poll, but in view of the fact that the poll is to be conducted under the Electoral Act, and that the Act of 1895 contemplates that every voter voting at the electoral po 1 ! shall at the same time have the right to vote on the licensing proposals, it follows that at every an elector ’s authorised to vote under the Electoral Act his right to vote at the same place

on the licensing question must be conceded. It is obi gatory on the returning officer, section 7, sub-section F of the Act, 1895, when he hands an elector a ba 1 lot paper to hand him one for the licensing poll, and wherever a voter has a r’ght to demand a ballot paper for the e’ectoral poll he must also furnish him with ballot papers for the licensing poll. It is true that neither the Act of 1895, nor the E'ectoral Act contains any direction for carrying out the exercise of this right, but the inference is that forms and procedure of the latter Act must, mutatis mutand’s, be applied. It is contended by petitioners that this right is only conceded to seamen, and in support of that content : on they refer to section 82 of the Electoral Act, 1905. This secion really supports the opposite view. No spec’fic provision is made under the Electoral Act for the exercise of the r’ght by seamen any more than for ; ts exercise by the holder of a permit, but the Act proceeds on the assumption that a seaman has this r’ght, and section 82 is only inserted in that statute to meet the peculiar conditions attending a seaman’s calling. If seamen are, without express provision, conceded by the Electoral Act to have th’s right, then by parity of reasoning the holders of absent voters’ permits must also possess it. ABSENCE OF THE OFFICIAL SEAL. In our opinion none of these votes can be rejected because a presumption was raised ’n favour of their genuineness by section 137 of the Electoral Act has not been rebutted, and it is clear that the returning officer’s decision as to ’nformal votes is not final. Otherwise the value of a recount would be lessened. At the recount the magistrate takes the place of the ieturning officer, who must obey his order as to the final declaration. It was contended that because that spec’fic provision is made in paragraph F of section 7 of the Act of 1895, for the marking of the licensiing ballot papers, therefore section 137 of the Electoral Act of 1905 does not apply to these papers, and consequently are inval’d without proof of fraud such as is required to render electoral ballot papers informal under that section. The answer to this, ’n our opinion, is that the E 1 ectoral Act, wherever applicable to the licensing po 1 !, is to be applied ’"n its entirety, un’ess manifestly contradictory to the provisions of the Act of 1895, and in this conclusion we are supported by the d’etum of Mr. Justice Williams, in Bastings v. Stratford (18, N.Z., L.R., 513). OTHER POINTS. Specific object ons to two voting papers: Both of these must be disavowed, as the two top proposals and part of the third are struck out. In the last proposal the words, “ Granted in district,” are left undeleted. In the other case, a line ’s drawn across the back of the paper immediate’y behind the top proposal, but no proposal is struck out on the face. The intentiosn of the votes are left doubtful. and we reject them ; n accordance with d’’ctum of Mr. Justice Chapman, in Regina v. Bagley Reports, p. 8445). and also with Rogers on E’ections (Vo 1 . 11., 128). Papers W’th Written Words Thereon : There are two such papers, one

having written thereon words, “Or colony,” and other words, “ Don’t want it.” The writing is not fe gned, but clear, and apparently characterist c, thus tending to the identfication of thp writers. Keeping in view the statutory direction as to vot ng, and the presumption in favour of officers doing their duty, these words must be presumed to have been written on the papers by the voters. Both votes must be rejected as ’nformal (see Rogers, Vol. 11., p. 125, and section 137. E'ectora', Act, 1905). Two votes cast by illiterates must be allowed.

The vote bearing the words “ Wakatipu licensing d strict” : This vote for continuance wou id appear to have been cast at Wakatipu on an absent voter’s permit and forwarded to the returning officer for the Invercarg’ll district, and we have decided to allow it. The discrepancy has clearly arisen through an oversight on the part of the deputy returning officer. After setting forth the details of disallowance the Bench finds that there are still nine votes over the required three-fifths majority for prohibition. The result of the polT cou’d not therefore be affected by taking into cons 'deration two cases of dual voting and the loss of a vote each by an elector who voted for restoration, and a paid licensing scrutineer wha was refused a vote, even though a 1;! four votes had been cast for cont nuance.

The petition was dismissed with costs against the petit oners as follows : —Professional fee, 35 guineas; witnesses’ expenses and costs of scrutiny. £9 9s; witnesses’ expenses to be as per scale. The trade ’’s reticent as to what action it will take on the ’aw points.