SUPREME COURT

Dominion, Volume 9, Issue 2827, 19 July 1916, Page 3

SUPREME COURT

WELLINGTON HARBOUR BOARD AND . THE U.S.S. CO., LTD A QUESTION OF DUES An interesting and important question was obtruded to His Honour tho Chief Justico (Sir 'Robert Stout) in tlio Supremo Court yesterday morning. Tho question arose out of an originating summons between the Wellington Harbour Board and the Union Steam Ship Company, Ltd., respecting the liability of steamers carrying San Francisco mails to pay harbour improvement dues, leviable. upon good.) carried in such ships. Mr. T. S. Weston appeared for plaintiff, the Harbour Board, and Mr. P. Levi for the defendant company. It was pointed out that under the Harbours Act of 1008 provision was mado whereby ships .carrying mails under any contract for the Postmaster-General shall be exempt from the payment of harbour dues, and it was admitted that the Union Company's steamers carrying the 'Erisco mails wero so exempt. But under tho Harbours Amendment Act, 1910, the board was empowered to levy a. harbour improvement rate not exceeding 2s. per ton by weight or measurement on goods discharged at or shipped from the port. The Wellington Harbour Board bad a clause in its by-laws which provided for the charge of Bd. per ton being levied upon ships as a harbour improvement rate upon all inward and transhipment goods within the limits of the harbour, exception being: made for goods that were the product of New Zealand and wero to be shipped out of the Dominion.

Mr. Weston submitted that under this Act and, by the power of its by-law through that Act the board had power to levy upon the Union Company's mail steamers the harbour improvement rate. That, however, was the question which the Court was askod to determine, and ivhofher the by-law was or was not ultra viros, of the powers of the Wellington Harbour Board.

Mr. Levi submitted that the by-law was bad because it purported to levy dues upon tho ship which the Act, he held, did not authorise. But even if the by-law were valid, the by-law ■ charges the ship, and' therefore under their contract they were exempt. The company was by its contract limited to certain freight charges, and they could not impose any additional chargo upon the goods. The company had in respect to its other steamers always paid this harbour improvement rate themselves, apd did not transfer the rate to the goods. Their steamers were therefore, ho submitted, by their contract 3iS mail steamers, and the by-law under which tie board .sought to charge them' irreeiwctive of its being ultra vires, clearly exempt, and intended to bo exempt from this impost. His Honour reserved judgment.

BORRCWING BY BOROUGHS. CONCERNING .A NAPIER LOAN. The judgment of Mr. Justice Hosking was delivered yesterday by Mr. W. A. Hawkins, Registrar of the Supreme Court, in tho case Drought before the Supreme Court on an originating summons by the Mayor, councillors, and burgesses of Napier for tho purpose of determining certain questions arising out of a loan proposed to be obtained fTom tho A.M.P. Society. At tho hearing of the case, which was argued a fow days ago,. Mr. T. 1\ Martin appeared for tho Napier Borough, and Mr. C. P. Skerrett, K.C., and with him Mr. It. Kennedy, for the Society, and Mr. P. S. K. Mac&ssey for tho AttorneyGeneral.

It may be remembered that in 1911 the Borough of Napier raised a loan by the authority of a poll of the burgesses, under tho Local Bodies' Loans Act, 1908, for X 7700 for the construction and -installation of new works for electric lighting and power and electric tramways for the Borough. The whole of the loan was expended on the works. Then during the financial year ending March 31, 1915, a sum of ,£3813 Cs. Dd. ivas exponded in the construction and installation of further new works for the same purposes. This sum was found by way of overdraft on general account. The corporation raised another loan under Section 1G of the Municipal Corporation Act Amendment Act, 1910, and extinguished its overdraft as it existed at March 31, 1910. On April 13, 1915, tho Borough of Napier and the Town District of Napier South amalgamated, and the new borough took over the liabilities and overdraft of the town district, and a further sum, JiIGSG 13s. 3d., likewise out of overdraft, was expended Ln 1915 in completing the construction and installation of tho works referred to. Then in September. 1915, a 'special loan of ,£27,500 was raised by poll of tho ratepayers of the united borough —.EIS.OOO for electricity, ii'lOOO for motor fire engines and building, and <£5500 for repayment of overdraft. Then the (jimstion wys raised by the A.M.P. Society for its own safety: Was tho borough legally entitled, and was it competent for tho council of the new borough to so overdraw its account? And His •Honour held that it was, for a new entity b,v amalgamation was eioated. The next question was: Can the amount of overdraft, .£5500, be legally raited under a poll of the ratepayers taken under the Local Bodies' I-oans Act, 1913? And in His Honour's judgment this action is not contrary to the Act. Tho third question affected tho right of the corporation to raise a loan for motor lire ongiues and building under the same Act. After arguing the case at txnsiderablo length, and comparing the Municipal Corporations Act aud the Local Bodies' Loans Act as to the powers of boroughs' to borrow for existing works, His Honour observed: "The language (of the Acts) does not authorise tho raising of a special loan for the maintenance of a, public work or undertaking. The purpose of tho loan must bo 'lor or in connection with the constructing or providing or establishing a public work.'" The purchase of motor engines and equipment was maintenance, and rot founding a permanent work, and therefore not authorised; but.'it did not preclude the raising of a loan for "establishing" a provision against fire in boroughs: the erection of a building might be permissible. His Honour also held that portions of the sinking fund and .special rate proportionate to the fire loan of .£4OOO and tho overdraft loan of X' 5500 could not be pledged for any pari; of such loans as might be legally raised, for a ratepayer, who approved of one of tho purposes of the whole loan of ,£27.500 may have voted for the others as the best means of getting .tho one lie wanted. And the question whether the A.M.I 1 . Society could lawfully advance the loan of r C7")00 would have to be deferred pending any further consideration desired on fu.rtlicr materials in regard to that part of the loan dealing with tho supply of fire appliances, and the summons would stand over, with liberty for any of the parties to apply to the Court in that respect. A BOROUGH AND ITS BANK. CAN OVERDRAW BE PAID OUT OF LOAN? Mr. Justice Uosking delivered judgment at the Supremo Court yesterday, through the■ Registrar, in the ease arising out of an originating summons to determine the question whether the Piikelcohe Borough Council could pay off its overdraft out of loan raised by tho authority of a poll of the ratepayers taken under the Local Bodies' Loans Act, 11108. The Pukekohc Borough came into existence on April 1, 1912, and at August 31 of that yoar had a bank overdraft of nearly .£SOO. The following month a proposal to raise .£B3OO for specific.works was carried by the ratepayers, and the overdraft was. extinguished out of loan moneys. Having paid off this overdraft, was the borough entitled to fake advantage of the provisions of Section 9ti of the Municipal Corporations Act, 1908, which provides that tho amount borrowed by way of overdraft shall l ot exceed the amount of income received from rates levied in any one year? Ilis Honour held that that 'must be tho limit of the Pukekoiie's borrowing from its bank; but the bank, acting in good faith, His Honour concluded, was not under a duty of inquiring wliethor the advances' it was requested to make would lead to a transgression by the council of the provisions of the statute already quoted. Counsel engaged in this case at the argument were Mr. T. i\ Martin, lor tho

borough; Sir John Findlny, and Tvilb him Mi'. «!. L. Stout, for ilm Bunk of New /.calami; and ]\lr. I\ S. K. OyJaeasscy for the Attorney-General.