LAW REPORTS.

Dominion, Volume 3, Issue 802, 27 April 1910, Page 7

LAW REPORTS.

FULL COURT.. {THE HARBOUR FERRY STEAMER^ ;-. , Sates., ; • The,tei'6]l p{ th 6 fuU Spurt in the 'case fit the Wejliiigtan Harbour Jerries, 'Ltd.;, V., tie Wdilifigtoa Harbour Board, 'heard on, Friday \&it, was .delivered -by the;ehitf JUstiM (Sif Robert Stout) yes- ■■- ■•. ■■'■■■■■...."■.•■ . The case, : tthieh : .Vis heard before the Chief; Justice, tit'. Justice Edwnfds, and Mr^tfusHce.Cooper , ; was brought iii tho iorm- 6f.-;ah originafing "sutotiibris/ the toutt. being asked to decide certain quesitioniT relating lo the power, of theHartp oharge bertliage rates to harbpUf; .forty. Steamers for; tho use o{ \eubjirbaii wharves. .-/■• . '. . ■■" ■ , jir.:F. ; appeared for- 'the. Feriy Company, and Mr. T. S. Weston iforithe Harbour Board. ./;'■-..' The'following were tho questions gtobtoifted.for the determination' of ■ ths <.:■::■ .■-.,■■ ■:/:.:. ' ■■■■;.'' ?(l)Is ths HftfboUr Bdafd entitled, .Mr/the purpose of raising harbour distinguish Wttfeon sUbUrIxm -Miarves and •; Other wharves, . *itßia i the; hatlMur, and ■ if So eft- " titled, vis it empowered to make a effecfal, berth'age rate. for ferry boats telling at suburban MfKilrves which is ' not ■ payable-. if 6iiy othef boats- or veisefs-using tie' , same wharves', or by;ferfy baata « v>e&els calling afc, wh&rveS other than suburban; wharves ■ :'/ . .-"• '■ - •M2)f-Is ;: th(i feafd'einpawered to' dis-.. tinguish, for tho purpose of berfhage charges or slniil&i , 'herbiur* dues be-tween-ferry boflbs plyifig; Within the ." harbour and 'ferfy boats- plyirig between':; the -ports Of iLyttelton. and. . Wellington;'.or 'Othef passenger boats eo'ming to the port of Wellington from dther. ports'.?■-,-■■■ '.: '.." -..'../ , '■'(&) ' Is til* board empOwefedY. in levying' Mfthige rates, ■to maKe ■&'. epecial. coiicession in favour of boat , 'starting from any .particular fharff situated withiu the harbour, of : must it dhatge all ferfj? boats ply-, ing within the harbour alike for the flseof-auy Specified Wharf? ...L ■tf(4};,js vthe bflord- .enijldwereti . to Charge '■ a license fee 16. ferry , bftats . plyingjwithin thehfttboßfj!.and paying no befthaee . rates, at .the ;. city.-. Wharves, and, if sir, Jβ. it; enabled, at the same time, to eh&tge sUdh ferry bftitsalberthage'foto fisr.thelt use 'of.; : Suburban or other wharves ? . ': ...".;.

?Question v 1: Suburban Wharvesi til delivering ''the/, judgment of the court.vthe.-Chief Justice said-that the , legislative" power of the Harbbtrt Board was mainly conferred by section 207 of -the- Harbours Act,,1908. In regard to the firei' question, the court was.of opinion : thiitrtM.'. Harbour Board undoubtedly coiild between suburban and , otiier. iyharves.' The board might charge ■one.'raie-at ,one .'wharf arid another rate '. at'iiinother.. ,So long as ;the satne, class . of;iihip -was charged the snnie rate, and theTsame voyage charged the fame fate, - there could be no .objection to .the dues being so, framed.. VThe objection men-' -'. tiftned;,was' that, On ( tbe, round vOyiige, 0.4e i ';rateV'K'as charged.for tw6 wharves •or"My:'wharves within half.a mile of -eaih other,-, and it, was said that the befthagc'rate was.for the two Wharves. • ilf/.a-. steam boat only; Visited one Vharf it.';had'\.to. pay the one rate-ptwo shil-' lingsr^hot' olio ■ shilling .for each bdt-.two;Ehll!in*S -for all'wTfarVes' within MM.-a paile" "ratlius./ The court could see npl'tib.i'ectjon. to: such, a by-law,- and,- in itsV, opinion,' tile . Harbour Board might ■ charge : nothing at" ! ona wharf and one, . ty.'h, v.or/ more shillings at another. It : might mute nil its city wharves' free,.'aiid . cliargi. ;it silbtifbftn ■. wharves; This -ivfls r ilj'ah'-iavflsion' oft Section ■Oβ, .so long as ■Chafgcd , >nitikey! ..-;. Ql3ea:i6n: } 2:' VVbat; is a Ferry Stoamer? . ■•'As- t.o'Jheqsecdtidi question,' it"!ivas w--cr.issfeoty*n f.oy rthdtrn < Vessel tftiding: be-': ■ tw«:r;: Wellington aiul._:LytHlton J4 wae .a fpVry-boat.a-'lt was a nlisuse'Of : the \i'otA "fi'ri-j-".-.fo-.,spenk I -pf- e-.boat going'-to-.sea '. n.itV'.traVollinr!', over 150 railes as "cross--ing..:iu■'■ferry.".' The /court '.«*•' no bbjectisn- to the' bo.ard Making; different- charges -for one class of -boat going- to'sea and another. class.- plying only in.jthe.jliarbour. The description of vojv ages,wasi not.the samo, and-the description .of ship also varied. Therefore, . again, '/section 96 v:ns' not invaded, and the; answer to.- question two- be-in ths'viaffirmative. -.., ■ -V .... {-.v Question; 3! .Special Concessions; :. " :'-Qn'eistion, three was really a question ■that should not , be put undef the Declaratory Judgments Act. The • Dedaraj tory. ■ Judgments - Act authorised '-'thej court-to'decide only on the .validity or •. legality or ■ effect of a statute' or. a byfieemed to v he:. simply, a hypo-' : .thetical question,: as- there' did not seem , ..;tb.-be a-, by-law carrying out the sugges-' ■tionvor hint in'this.'questibn. All the ■ coifrt'.coftld say was , that- equality' of ■charge;cpnld only apply to shipi .passing JbeWMn;;. the, sfimo.-. points - of departure . a ?d---arrival,'. 6r, .as it is described in eectioa"-56," the fame descrititionof voyage.- ; . There, was .no right '\a make any: concession in favour of any ferry boat 'but, ;.if : jhe voyage of.va. ferry boat was there • might , be a different ■." T ? t . e -;«.:'tne commencement and terminus :%;; b . e i v °y, a S e ;were; different,. the rates might be.different, as it was a different deMnption of /voyage.. .The court coni s i der «?. -therefore, _, that' this ' question i should not be ansWertd,- tliere being no . lby-la.w , c bofore .itv in. -those proceedings. .-.

v f,v;/-Question 4: License Fee. ; '/The ..answer. to the ■• fourth question must ■turn upon the interpretation of sub-sections 10 to .17 - (inclusive) of sec-.tion-207.;: In the opinion of the court, wete. was-power to license ferry boats ihife power was- expressly givea by eub--6ep.uon;-15,' which.stated that , a by-law might,; P r.ovide for. . the' registration and licensing: of .ballast, boats,\ tank- boats cargo.; boats, and .lighters, , etc. In the Dpinion<of -the court, the words "and , nner vessels■ and boats plying-for hire" were.descriptive.of anew class'of boats, and] could not be' referred to the class of boats-previously mentioned; What was called, the ejusdem: generis' doctrine did not;,? Apply in interpreting these -words, ifierefore, there was ample power for the Harbour Board to charge a license fee to ferry-boats .plying' wilhin the harbour' between . different-: wharves within the larbOur, and that _ the 1 license was not confined to ballad boats, tank boats cargo boats and lighters, nor tho vessels simply carrying passengers from ships as had been argued. .

CUSTOMS. OFFICER DESTITUTE., ..■.../ HIS APPEAL COSTS. « T ' !e »? t £e of £ rthur ? r °ad BeynoMs v. Hie,. Attorney-Gen«ral, John Augustus Eufton.-and Walter BowlSs was menhqnea in Chambers .yestcrday, before Mr:,Justico Cooper.. . ' r ' H - H- Ostler appeared for Reynolds and air.- it.. Myers (Crown Solicitor) for tnef'Attorney-GenDr.il. ■' ' . case had been before.tho Supremo Court.and the Court of Appeal; The facts placed before Mr, Justice Cooper when the case came before him were that Reynolds, a Civil ficrvniit of 25 years' fitariding, had been-suspended from the Customs Department in' June last, charges of'misconduct being made against him.-.'; Hβ denied' tho truth of tho charges; and Messrs. Hutton and Bowles, two Civil Servants, were appointed to inquife into the /allegations, and, after fully. •• hearing the case, to report their opinion to the Governor. Reynolds, who was subject to epileptic fits, was too ill to attend the inquiry, and: engaged a solicitor, who presented to tho Board of Inquiry, a medical certificate explaining appellant's absence. Tho solicitor was excluded, and. the inquiry proceeded, no evidsnep being called in appellant's deKnee. - The caso for the Court' of Apthat when Reynolds mado application to the Supreme Court fof a writ of prohibition to restrain tho board from proceeding with their report, and, in the alternative, .for a writ of certiorari, or a declaration.that the report was nnil.and void, because he had been condnained unbea'd, Mr. Justice Coopsr decided ■that",' is the Governor had a discretion as to

whether the officer should be dismissed, even though foiihd guilty by tho board; the opinion of the board was not a decision which affected his rights, the Court, therefore; had no control over the board. The Appeal Court, on November 3 last, affirmed the judgment ' of Mr. Justice Cbbper. nlldiviiig , ' costs agaiiist BejfnoldS. du - tM lowest scale. Mr. Myers moved for costs in tho Supreme Court. .■.-■■' • ',Mri..Osiiiir: opposed the motion, spying that Reynolds was .practically destitute: For that reason, he contended, costs' Ought .not to bo awarded against Jiim. n.% had bseri out of work for hiiie months Vfhile under suspension, and he had inuafred heavy expenses for medical atWndance. ' . His Honour: A fresh inquiry was offered hini, and he did not.accept. Mr. Ostlti 1 : It Was oifefed on such conditions that we had to advise him that .lie could not accept it. , Mr- Myers: What Objections had you? Mr. Ostler: It was a 'condition that Reynolds must not question the jurisdiction'of. a board of inquiry at all. Mi , , Myors: Oh, no, - Mf. Ostler: Indeed, it was.-- ■ . Mr. Myers remarked that Reynolds WGuld not accept the judgment of the Supreme.Court, although, he had had the opportunity of ajiptlier inquiry de novo, provided that he took no proceedings which would prejudice the new inquiry. It appeared as if he had not wanted the inquiry. Instead, he chOsfl to go to the Court of Appeal. Costa had been allowed against Reynolds in the Court of Appeal, but these-had beetl hd indemnity to the Crown. Counsel therefore.asked-for costs lii the Supremo Court action. Mr. Ostfer Mid that a new inquiry had been offered to Reyridlds br letter, .five conditions being imposed. Reynolds was advised to object to these conditions, and it wAS submitted that he was entitled to an inquiry Without conditions. The Department then withdrew ono of the conditions, but insisted on . the other fOUr, one of which. was thai in any event Reynclds shbuld not.tako airy proceedings by Way of questioning the legality of the board. ■ ..- - . ■ ■ His HonoUr: I.said in.delivering judgment that thA GtoWh should iiot take costs if the new .ihtjttiry , was accepted. •■ ' Mf. Ostler: Tour HonOSr meant ari inquirV UndM the Civil Service Aet. What we iVere offered was not an inquiry Under the Act. . . -.' . ffl> Hfiiiourl I thlni Some, moderate costs, must be allowed. ' > ■ • - . . Mr. Ostler pointed out that the Department: . had saved ' Reynolds's salary while.ha was under suspension, and Reynolds Was in pOOf eirflUtnstanCes. Had he been reinstated by the Department he woiild hav6 been paid tho amount of his wages during the, period of suspension. Reynolds was ,a. bhronic invalid, and. the 'circumstanftes Of the case were most unusual. ...

. Mr. Myers: That is & matter for the consideration of tll6 . Department, and ; cannot affect the n!cil)g of tests. My friend might haVfc at)i>K)!ifihed US. His Honour said that he wbuld fix the Supreme Court costs at .ten guineas. Hβ frould recbmmond, h6wever, that- the- Department shdnld net• enforde th 6. costs, although. this* would not be part of the judgment. '■ His Honour considered that lie would be.laying down a wrong principle if he refused costs. Mr. Myers: If mv friend applies to the Department he Will probably bo met ia ii''satisfactory manner. •