RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume IX, Issue 2628, 20 July 1871, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before A. G. Strode, Esq., R.M.; James Fulton, Esq., R.M.; and I. N. Watt, R. M.) Civil Casks. J. Macandrew (his Honor the Superintendent) ; Mr Bradshaw (the Provincial Treasurer) ; Mr Bathgate (the Provincial Solicitor); and Mr W. H. Cutteu, were charged on the information of Matthew Holmes, with obstructing the navigation of the waters Jof

the Bay, by the construction of certain works at Anderson’s Bay. M r Macasscy for the prosecution ; Mr Haggitt for the Superintendent ; and Mr Barton for the other defendants. Mr Barton demurred to the jurisdiction of the Court, on the ground that by a statute of Queen Anne, such an information could not lie laid by a private individual without permission of the Supremo Court. He quoted authorities in favor of his view, and hell that such being the practice at Home, a similar rule should no doubt be followed in New Zealand. He knew no instance at Horae of actions against a Road Board, or in case of libel, without application being first made to the Court of Queen’s Bench. He asked an adjournment of the case without compelling present submission to the jurisdiction of the Court. Mr Haggitt asked an adjournment, on the ground of the prorogation of the Council, and the necessity for the attendance of the Superintendent at noon. Mr Macasiey would oppose the adjournment, unle s ail undertaking were given that the works should not be proceeded with. His objection to Mr Barton’s argume it was that his arguments had been ruled by Mr Justice Chapman to relate to proceedings by information, and not by indictment. Th Justice of the Peace Act empowers the Magistrate to investigate any charge involving an indictable offence. It being assumed that the information disclosed an indictable offence, the prosecutor had taken |a proper course in instituting the proceedings. Had the proposal to stay prosecution of the works been accepted, he should have consented to an adjournment, but having been rejected, he should press the Court to proceed with the case, allowing such adjournment as was necessary to allow the Council to be adjourned. Air Haggitt pointed out that the question of adjournment rested with the Bench, and as to the adjournment of the Council it was not in the hands of the Superintendent to decide when the Council should be adjourned. No proceedings in that Court could prevent the work being proceeded with. Nothing but a prohibition by the Supreme Court would do that, even if the defendants were committed for trial. No injury could accrue. Mr Barton said that the adjournment asked was only reasonable, for the information was for an alledged offence, committed on a certain day, and could not efiect actions subsequently done. The information was read. Mr Strode said as important interests were at stake, by his invitation, the Magistrates with him on the Bench were present on his invitation. The Court adjourned to two o’clock in this case. Smith v. Proudfoot, was adjourned to this day week. At two o’clock the casi was proceeded with. Mr Macassay stated the case for the prosecution, and detailed the various steps taken by the informant to prevent the formation of the Anderson’s Bay road. He argued that if a private individual had proceeded with the work, he would have been liable to be indicted, and that the Provincial Executive were only competent to act under powers conferred upon them by the Crown. The Crown, in the Public Reserves Act, gave no such power as was claimed to be exorcised by the Superintendent to form that road, apart fr >m a special Act by the Provincial Council, In the Roads Act, 1865, there was an extension of power, but it only extended to control over creeks, runs, roads, and lakes, which he contended only referred to inland streams. In the Marine Act, 1867, sections 32 and 33, power was onty given to authorise works of a cei'tain class, specified as wharf, pier, quay, dock, or other harbor work. These works were merely for convenience of shipping, and the work in question was none of these. It was incumbent upon the defeudents, Ist, to show that what was done on iStatutory authority; and 2ndly, that it was a proper exercise, of it. From the nature and magnitude of the work if completed, no Court Would authorize its removal, and from any point of view the evidence would show that the defendants were guilty of a serious nuisance. If it were contended that advantage to the inhabitants would justify the construction of the work, rulings of Courts at Heme decided that such a plea was not sufficient to justify the obstruction of the navigation. It was competent for the Legislature to pass an Act sanctioning the work, but until that was done, the action was evidently illegal and unjustifiable. The following letters by the Superintendent were read : “ Superintendent’s Office, “Dunedin, 3rd May, 1871. “ Gentlemen—l have the honor to acknowledge the receipt of your letter of May Ist, on the subject of the Peninsula Beach Road, which is now being opened through to Dunedin by means of prison labor. “You state that this work, as at present being carried out, will materially interfere with the ebb and flow of the tide, and in the course of time cause the whole of Anderson’s Bay to silt up to the serious loss of the Honorable Matthew Holmes, and depreciation of the property at present occupied by him. “In reply, I have to observe that Mr Holmes has evidently misapprehended the nature of the work intended to be carried out, inasmuch as it is proposed to make full and ample provision for the flow and ebb of the tide, and for boats, barges, &c., having access into Anderson’s Bay as heretofore, and this in the face of a very strong pressure which has been brought to bear upon the Government on the part of residents in Anderson’s Bay, to construct the road so as to reclaim from the sea not only Anderson's Bay, but a large portion of the harbor. “ I presume that it is this latter proposal to which the Hon. Matthew Holmes takes exception, as being one which might possibly prejudice the condition of the harbor generally, and therefore one which should not be entertained without due consideration. If so, you may rest assured that no action will be taken by the Government in that direction without a careful investigation of the probable consequences, either by the appointment of a Commission to examine and report, or otherwise, “ In the meantime, I venture to hope that no obstacle may be p'aced by Mr Holmes in the way of pioviding the best and shortest outlet for the large number of settlers on the Peninsula, who for many years have been struggling from the want of any road whatever to Dunedin. “(Signed) J.' Macandrew, .“Superintendent. “ Messrs Macassey and Holmes.” Under date May 16th, the Superintendent states he has yet tp loam that the making

of the road in question, or any other public road, is an infringement of the Constitution Act, and that should Mr Holmes be successful in restraining the action of the Government in making the road, he will be inflicting the perpetuation of a very serious hardship upon a large number of settlers on the Peninsula, and he will also be depriving the inhabitants of Dunedin of what promises to be one of the principal lungs of the City. Donald Reid (Provincial Secaetary), declined to answer questions as to authorising the work, on the ground that it might involve him in criminal proceedings. A. Willis and Alexander Cairns were examined. The latter only gave evidence as to the design of plans of the work. The case was adjourned to Tuesday.