PRESIDENT MAGISTRATES

Inangahua Times, Volume X, Issue 1532, 8 April 1885, Page 2

PRESIDENT MAGISTRATES

(Before F. Biro, Esq , R.M.) Thursday, April 2nd. 1885. ♦ The following is the judgment delivered by His Worship in the petition case against the return of Mr Brennan : — In this petition it is alleged, that a number of persons voted who were not entitled to vote. The first question raised for the respondent was that of jurisdiction, and it was argued at some length that the petition was not in accordance with the provisions of " The Regulation of Local Elections Act, J876 " and therefore the Court had no jurisdiction to hold the enquiry, but on this point, as I have already stated, I have no doubt the provisions of the Act have been, I may say, strictly complied with. Another point raised for the defence was that the h'"lder"of "a miner's right was not entitled to vote unless his name appeared on the roll for the riding. It has already been held by several Magistrates that the holder of a miner's right is entitled to vote for the riding in which he resides, under the provisions of " The Counties Act 1876," Amendment Act 1882 " S. 41, and I can see no reason for coming to any other decision. Then follows the question as to what constitutes residence, and there have been so many cases cited to show what really does, or does not constitute residence, that I do not think it necessary to refer to them here If the stopping in a place t« * eat ' ' drink ' and ' sleep ' constitutes residence, a person might be a resident of two or even three ridings on one day, which I think shows an absurdity. I think it must be held that a man resides at the place " from which, when he has departed, he is considered to be from home." and " to which, when he has returned, he is considered to have returned home," b« cannot be said to belong to a place, or reside at a place, unless he be there in the spirit and meaning of abiding there, and having his ordinary habitation there. If the mere appearance of a would-be voter in the polling booth on the day of election constitutes residence, and which I consider is in reality the argument for the respondent, why should the Returning Officer ask the question, "Areyounow resi Hug in the riding," when the living fact is )>ef>re him, and why should it be so clearly and distinctly stated in the Act that he bhall be allowed to vote in the riding in which he resides, and no other. I think the question is so clear that it admit* of n<» argument, that coming to a place for a few days for a holiday or amusement, or even to l«nk for work and with no intention of remaining (and there is no evidence to show that even one of the witnesses ::mwm to Reef ton with any intention of ; remaining, and many of them said most truthfully, I think and straightforwardly that they came to Roefton for a holiday and went "home" again), dues not constitute residence. The last question to be considered is that of the boundaries of Hie riding; it iaarguod that ttieboundaries cannot hedefihed ;that the wording «f the Gazette is vague, and in some parts utterly meaningless, and also that the map or plan does not corres- ! pond with the Gazette notice. I quite I agree that the Gazette is vague and meaningless as regards s»tne of the boundaries, and that the map produced does not correspond with it on the whole. But from that Gazette and from the map authenticated by the Surveyor-General, combined with the evidence of the Dis-trict-Surveyor I have no hesitation in saying* that Boatman's township, Caples Creek, and, therefore, the Welcome and ( Specimen Hill claims are outside of the Reefton Riding and in the Boatman's Riding; that Big River and Merrijigs are in the Antonio's Riding, and that the Ajax and Phoenix claims and Lankey'a Creek are ou'^side the Reefton Riding. Th« Court Jias been asked to take the evidence of Mr Watkins, as against the Surveyor-General's authenticated map. ! the District Surveyor's evidence, and als its own common sense ; but I think i must be admitted that the weight of th evidence on the point is largely in favo «>f the petitioners. I must admit i would be very difficult, I may say impos sible, to define same portions of th boundaries as given in the Gazette notice but in this case these portions are not ii dispute, and, therefore, it is not necessar; to have them clearly defined. Much hai been said during the hearing of the cas< about what has been considered th< boundaries of the various Ridings for th< past eight years, and although I do not consider it affects the case, yet I think il my duty to say that lam very luuct astonished to find that, after certain places have been held and considered during these eight years .to have been within certain Ridings, and that the electors residing at these places have vo^ed for the Councillor or Councillors ol certain Ridings, that now endeavours shonld be made to prove the places are in totally different Ridings ; but I'will refrain fr«m making any further remarks on the subject. On the scrutiny of 71 ballot-papers being held it was found there had been 71 votes recorded for Mr Brennan and 62 in favor of Mr Patterson, and 1 for Mr Campbell, Mr Brennan having received 8 r>luni[ ers. Of these there are six, namely W. Cochrane, W. M'Mahon, P. Cunningham, G. Dillman, J. Dorrian, and J. Mannix, who, I consider, were entitled to vote, and therefore their votes nre allowed, but of the remaining 66, after a most careful examination of all the evidence I mutt hold that the allegation set out fh the petition has been proved to the full satisfaction of the Court, viz : that thoy were notentitled to vote at the said election, not being at that time "residents" of the Reefton Riding, and in fact, in many instances not being even residents of the County. Therefore their votes will havi> to be struck off the poll, and the candidates then appearing to have the greatest number of votes declared duly elected, find the result of such deduction will be as fellows : Brennan 192, being 257 recorded votes, leas 65 disallowed ; Robert Patterson, 141. being 199 recorded votes, less 58nisallowed ; William Campbell, 205, being 2o6 recorded votes, less 1 disallowed ; A. A. S. Menteat h 210 recorded votes. I therefore declare the election of the taid Mr Patrick Brennan to be null and poid, and that Messrs A. A. S. Men tenth md Mr W. Campbell are duly elected as Councillors of the Inangahua County Douacil for the Reef too Riding, the costs

of the case to be paid by the respondent, Mr Patrick Brennan. The costa in the case were then assessed

In - the matter of the Election Petition agaikst the retukn op A. A. S. Menteath for the Riding of Reefton. The evidence for the petitioners i closed on Friday last, when the Court adjourned. The hearing of th« case for the respondents was proceeded with to-day. Mr Guinness, with Mr Lynch appeared in support of the petition, and Mr Jones, with Mr Menteath and Air North appeared for the respondents. Mr Menteath tien opened upon the Jaw oi tb*^ euiJydw^Mtng npjm-th« faot that as the petition only prayed that the election of A. S. Menteath should be declared void, that it was bad in law, inasmuch as should a scrutiny show that votes had been improperly recorded for any other candidate the Court would have no power to strike tlreui off. He then called the following evidence : — George Henry Bui lard : I am snr veyor in the survey office Reefton ; in December last Coombs, Pugh and Newcoiwbe were in my employ ; they were engaged and paid in Reefton ; this is the centre from which we always work ; I have a house in Reefton, and lam very often out with the men ; I receive my instructions from Beefton ; whenever the three men were not in camp th«y came to Reefton ; Coombs told me he has a share in the property occupied by his father, Newcombe lives ! with his sister and sometimes at an I hotel ; Reeftou is the place where they get all instructions ; tliemen are all in j my employ at the present time. By Mr Lynch had been above Crushington with the staff ftom July ; we often came into town ; the men came in at the holidays and went back to Maraia afterwards ; it is about 80 1 miles from here ; do not know anything about Ridings ; sometimes letters from ! i Nelson came directed to i»te at the ! survey office Reefton, but as a rule I get them from Mr Montgomeria. Charles Dowsing : arrived in Reefton from London in September ; I brought two nephews with me, diaries and Havelock Dowsing; they lived with me part of the time and part of the time in a cottage in Upper Broadway. I paid for their board and rent; in December Havel oefc Dowsing was workI ing in the Reefton Riding ; had a few words with C. Dowsing during the holidays and he. left my cottage and went to live, next door; he went to ; work at the Golden Treasure but did not work regularly ; sometimes I ; cooked the provisions f©r him and i sometimes he cooked himself; all his ! provisions were cooked in Reeften and I carried up ; all his cloth's were in Reef- j ton ; In December his home was in Upper Broadway. John Harold : I am Clerk of the County Council; produce the rate book i for 1884-5. Mr Lynch objected to the evidence. His Worship overruled the objection. Examination continued : Joseph Boulden is rated for 69 ; section 68 belongs to Mr Ozley. , I William Macquarie : lam a miner r« residing in Reefton ; have resided tn t ; Reefton for three years ; live in a hut with my father on the Buller Road; I contribute to the rent and still occupy the premises ; all my clothes, papers, ' arid things are there ; had the house in December and ever since; have worked all over the district; worked at the Low Level Tunnel for 8 months but resided at Reefton all the time : Reefton is my home ; have never voted in any other part of the County ; my house was rated for Beefton two years ag°By Mr Lynch: Before Christmas worked three weeks at the Ingl«wood ; before that was six weeks at Boatman's; lived with Quionat Murray, Creek, but came to Reefton fcwic« or three times a week and stopped in town; went back to the lukermah a fortnight after Christmas ; the house I live in belongs to Dr Martin, Duhea'ih ; my father pays the rates ; I paid the rent for the cottage to Mr Bowman ; ray father and I were together when we engaged the house ; produce my miners right : took it out myself in this office. By Mr Jones : My father and I hare accounts between us and whenever w» have a settling up the rent is provided ; the rent we are* paying is 2/fi per week. By the Bench : the hut is situated about five minutes walk from the Court House. R. Oxley: I am a storkfieper in Reefton ; I am the owner of the house occupied by the Boulden's ; the. house is rated for the Reefton Riding and I pay rates for it P. Salmon : lam manager of Dawaon's Hotei ; Mr Casely has resided at the hotel for two years and five months; During that time his room has only on three occasions been unoccupied. Henry Evans : I am a mill sawyer ; I know both the Sbakespear's ; first knew them four years ago in Reefton ; they had been awuy from Reefton and came back in October and lived in a hut near the mill, and occupied it till about the 30th December eel fishing; all their things were in it ; the elder ] one was laid up and oould not work

and the other travelled round eelfish- 1 ing ; in December he was living in the ; hat ; he came back at Christmas ; 8. 1 Shakespeare worked three days for Mr Main during the Christmas week; and resided in the bame hat nntil the 10th January; one was laid np there and the other went about fishing and came back occasionallyBy Mr Guinnctss : I was not in the hut every day ; I can swear from conversations with them that they intended to stop in Beefton ; usually went to the mill once a week and found them there. By Mr Lynch ; saw them there on Sundays during: December, and on week days after Christmas. By the Bench : lam positive that I naw hoth men at the mill during December and January. George Willis : I am bailiff of the KM. Court at Reefton ; my son wag working at the Oriental till Christmas ; he rented a cottage in Reefton since September privately and has carried it on ever since ; he lias always paid the rent of the cottage. By Mr Guinness : my son gave me 5s in cash, and 20s by order for rent, my son his never been legs than once i fw*«fcr*t horn* for months before the election, and sometimes twice ; since Christmas he has been unable to work and living in his house. Phillip Salmon — re-called, I produce the dining book of Dawson's Hotel ; it shows that during the month of Dec, Mr Casley only missed one day's meals, from the 22nd to the 24th, and be bad tea on the latter date; the book is in the handwriting of Miss Hussy, the waitress. John Montgomerie : I am District Surveyor for Reefton district, and hold my appointment from the General Government ; lam an authorised snr veyor, Watkins holds a certificate signed by the' Surveyor General, I hold my appointment from the Surveyor - General ; if a surveyor came here to make a survey he would have to take the meridian laid down by me, unless he went to the initial point at Ahauraand worked it up for himself ; if my meridian were wrong his dat* deduced from it would necessarily be wrong, unless lie corrected it afterwards ; the true meridian for this district was fixed in 1876, at Ahanra, and I worked it up to Reefton ; if a survey of the Reefton Riding had to be made in 1876 and the Gazette notices was placed in my hands then I should have had to take the magnetic bearing, as the true meridian was not fixed at that date ; there wag no plan in the office showing the true meridian when I came to Rpefton ; all Woolly's plans in the office are worked from the magnetic ; taking the magnetic line from the confluence of Dead man a it cats off a part only of sections 67 to 69, Upper Broadway, whereas, if the true meridian is adopted, a large number of sections in the upper part of the town are pat into the Murray Riding. His Worship said, iv r.egard to this question of true and magnetic meridian, he had telegraphed to the Surveyor General, who had replied that i the map line frSm the confluence of Deadman's Creek to Upper Broadway was on tke true meridian. This he would accept as final on that point, and it was unnecessary therefore to deal further with it. Mr Watkins had, however, said that he was the only authorised surveyor; that statement struck the Bench at the time as being strange, and he had found that it was quite unwarranted. Mr Lynch said Mr Watkins held his certificate from the only constituted body who could grant one. His Worship said the District Surveyor was tji« authorised government surveyor of this district, and the Conrt would accept h is evidence in preference to that of any other surveyor in the district, and for any private surveyor to come forward and say he was the only authorised surveyor in the district was simply ridiculous. Mr Lynch : said the term '«Authorised Surveyor " had a special meaning. For instance no other than an "au • therised surveyor was recognised under the Land Transfer Act. Mr Jones said Mr Montgomerie's snrvtys were recognised under .the Land Transfer Act equally with those I of any surveyor in New Zealand. The certificate only went to the question oi competency, whereasinthe present case it was merely a question of credibility; Mr Watkins had endeavoured to set himself np on a pedestal, but he (Mr Jones). had shown that an "authorised surveyor " was not such a rare bird aa Mr Watkins had sought to make out His Worship said he had endeavoured throughout the case to solve every knotty point by the best evidence he could procure and he had therefore telegraphed to the Surveyor-General whose reply was that Mr Montgomerie was an authorised Surveyor. Examined : Dead man's Creek is marked on the map but it is not in its true position ; the line was taken from a survey made a long time ago ; Deadman's Creek is incorrect as shown oh the map ; I have made a survey and can say Df adman's Creek is not correct as shown «n the map produced ; the bearing of the line is correct, but the starting point is not in its proper position; this would alter the position of the line slightly ; it would make the boundary line further to the east ; according to the plan produced the Oriental is in the Reefton Riding; Golden Point is also in the Reefton Rifling; I have l>«en over U Dvadman's Creek ; from the present confluence of Deadman's Creek to the east there is a bit of a terrace ; a small ; dam in Deadman's Crenk would put the confluence of Deadman's Creek further to the east ; there is a low terrace over which it might flow further to the east; a private surveyor would have to adopt the magnetic if there was no trig «s-

tablishod ; there were no trigs when I came here; tho present position of Dead man's in the plan produced was fixed before the trigs were established. By the Bench : On Wooley's plan showing the magnetic line only a portion of two sections in Upper Broadway would he cat off. Mr Guinnea admitted that all the sections above the true line in Upper Broadway had all been rated for years in the Reefton Biding. John Harold: William Chamly is rated for 180 acres of land; don't knew where thn property is, bat am tola that it is at Slab Hat Creek; Hunt, Harris, Murphy, O'Hbea and A. King, living in Upper Broadway, all voted at Reefton m respect of their properties in Upper Broadway, now alleged to be out of the Reefton Riding. This closed the evidence for the respondents. Mr Jones said that after all hat had been heard as to the question of jurisdiction he did not intend to refer again to that branch of the defence, I but would confine himself shortly to a comment upon the facts. The Conrt I was asked to cnt off a large portion of the town of Reefton which for eight ! years had been rated in the Reef nn Riding, and declare it to be in the Hurray Riding. This request was urged upon the evidence of Mr Watkins, who had been able to swear that the confluence of Deadman'a Creek with the Inangahua had not changed in ten years. He conld not refrain from saying that he had been surprised by the evidence given by the witness in question. The Court would remember that in the former petition case, when the SurveyorGeneral's plan she wed Boatman's to be outside the Reefton Riding, Mr Watkins swore that the boundary line was incorrect, and was put on at random, and that Boatman's really was in the Reefton Riding. Now, however, when the same map showed a large part of the town of Reefton to be in the Murray Riding, Mr Wa<kins was able to swear the map was correct in this particular and could swear to the accuracy of the line to an inch. Could the Court credit such evideuce ? His Worship said he certainly was ; surprisee at the nature of the evidence given by Mr Watkins. Mr Jones continued to comment severely upon the evidence given by the witness, and refused to withdraw sotno reflections he had cast upon bis testimony. Mr Lynch then addressed the tJoart, after which a short adjournment took place, to enable His Worship to make the scrutiny which, upon the Court resuming was announced as follows : — j He said the petitioners had challenged 23 votes, but two of these had been fonnd to be informal, which reduced the nnmb«r to 21. Of this taenty-one he held that the following six persons were properly entitled to vote, riz, Messrs G. Caslev, H. Francis, P. Saakli, W. Macquarie, J. Willis and H. Dowsing. The following fifteen h« held to have, improperly voted : — Archer, Campbell, (A). C. Dowsing, Nicholls, Thomas, Pugh, Newcombe, Coomb, Hanna, Bowden, Bowden, (G). Faler, Nash, Shakespeare, Shakespeare (J)The revised pell then stood as follows : — Poll Struck off Total Menteath ... 210 15 195 Campbell ... 205 14 191 Brennan ... 192 1 191 Patterson ... 142 — 142 His Worship said he should be glad to hear counsel as to his right to exercise the casting vote. Mr Lynch said as the County Returning Officer had on the first declaration of the poll declared Mr Brenuan elected, the Conrt would no doubt follow the declaration of that officer and give the casting vote for Mr Brenuan. Mr Jones said the Regulation of Local Elections Act was silent on the question, but it was apparent that unless the Court bad power to give a casting vote the whole machinery of the Act would be rendered nugatory. The stage th<> case had now reached was a practical confirmation of the argument advanced* at the ootset against the form of the petition, which prayed only that the election of Mr Menteath should be declared void, consequently the Court could not under that prayer unseat Mr Campbell. However he left the matter entirely with the Court, beyond merely pointing out that accord* ing to Parliamentary nsage the casting vote should go to the sittin member, which in this case was M Campbell. His Worship said that having regan to the nature of the evidence hrough forward in support of the petition, anc in view of Parliamentary custom h such matters he would give his casting vote for Mr Campbell, and declar* Messrs Menteath and Campbell dulj elected. Costs to the amount of £14 14s were given against the petitioners. The Court then adjourned.

m toiiows : — ,t- --£ 8 D. Costs of Court 16 2 0 Police charges for service of summonses 16 7 0 ttailiff expenses service of summonses 7 4 0 Moor, 5 summonses 10 0 Ramble, 2 summonses 0 6 0 Advertisement 10 0 Counsels fee „ 42 0 0 Witness expenses 79 13 0 £169 12 0