SUPREME COURT.

Evening Star, Volume IX, Issue 2650, 15 August 1871, Page 2

SUPREME COURT.

IN BANCO. Tma Day. (Before Mr Justice Chapman.) TIIIS PORT CHALMERS RAILWAY. Crook v. Proudfoot and others. —ln this action the plaintiff, who is the owner and occupier of some land at Sawyer’s Bay, seeks to restrain the defendant*, who are promoters of the Dunedin and Port Chalmers Bailway, from carrying into execution certain works contemplated by them in and over the land of the plaintiff. The motion was founded on affidavits by the plaintiff, Mr Wales, architect, and Mr Howorth, plaintiff’s solicitor. Mr Macassey, with whom was Mr Howorth, appeared for the plaintiff, and Mr B. C. Haogitt for the defendants. The declaration stated that for several years previous to, and on the 18th April last, plaintiff was the owner in fee simple of 20 ac es of land at Sawyer’s Bay, and at all times previous had enjoyed a deep water frontage; that the defendants alleged that by virtue of two Ordinances passed by the Superintendent and Provincial Council, entitled “The Dunedin and Port Chalmers Radway Agreement Validation Ordinance, 1870," and “The Dunedin and I’oit Chalmers Railway Lands Compulsory Taking Act, 1870,” they were authorised and empowered to make and construct a railway, (Ac , from Dunedin to Port Chalmers ; ami that by virtue of “ The I ands Clausa* Consolidation Act, 1863,” therein referred to. they were further empowered to take all lands accessary for tbe construction of the railway; and that they intended to make the railway under color of the authority, which it was alleged had been conferred upon them by those Ordinances. That on the 18th April last, the defendants served plaintiff with a notice, st ting that a portion of his land was required for the purpose of the railway ; ami giving notice that they were willing to treat with him as to compensation. The seventh paragraph stated that the railway was being proceeded with,

and fcliat it was intended to carry it over a portion of plaintiff's land, which had not been vested in the Superintendent, or granted to the Crown. That such act would occasion great loss an 1 inconvenience to the plaintiff, by depriving him of the u*e and enjoyment ef d'-ep water frontage, and of access to Ins land by water ; that no agreement had been entered into by the plaintiff to sell any portion of his land to the defendants, nor had compensation been made for the severance of bis land, or for his loss of dtep wat-.r frontage. On the 22th May last, defen lants served plaintiff with a notice of their willingness to give the sum of Ll4 15s ns compensation ; and failing its acceptance to call in within ten days from that date, a sheriff’s jury to assess the amount he was entitled to, which, however, had not bae-n done. That the Ordinances on which the defendants relied, were invalid ; consequently they wore not empowered to make the railway or take lands for the purposes of it. That the defendants had actmby taken po'session of a portion of plaintiff’s land : wherefore he claimed that the defendants and their servants might be perpetually restrained from carrying the railI way over his land. The affidavit of tho p'aintiff verified the material allegations contained in the declaration; and that of Mr N. Y. A. Wales went on to state that the effect of carrying the railway through the plaintiffs land would greatly depreciate its value by depriving him of deep water frontage and of landing and bathing places, and that Ll4 15s was inadequate compensation. Mr Macassey said that it would be observed from the affidavits that the real dispute was probably the amount of compensation. Tire defendants declined to make what the plaintiff considered to be a proper or adequate proposal; and tho consequence was that the powers under which they were acting were impeached. Me would submit afterwards that there could be no possible dispute that the Ordinances under which the defendants proceeded were invalid. There was atr opinion by the Attornoy-Gene-ral to that effect; if he mistook not, it was laid before the Provittcial Council last session. Tho Ordinances under whiph the promoters of the railway acted were 307 and 308 ; and it would be necessary before entering upon the case to consid- r the provisions contained in the agreement. Ordinance 307 recited that the Provincial Council in session assembled, adopted a resolution authorising the Government to enter into an agreement with any company for the construction of a line of railway from Dunedin to Port Chalmers, and in respect of that agreement authorised the setting apart of jetty dues annually, to an amount net exceeding 8 per cent., and from that fund tho Superintendent bad to pay interest at that rate upon capital not exceeding L 70,000 ; and in the event of jetty dues being insufficient to cover the guarantee, the ordinary revenues of tho Province were to be applied to that purpose. A reserve of land was also made as a further guarantee. The preamble showed that there had been a doubt upon the subject; and the Ordinance set forth that it was passed for the purpose of allaying and removing all doubts iu reference to it. This attempt to deal with the waste lands of the Crown was beyond doubt invalid. Mp Haggitt interjected the remark that the pesolntipn creating the reserve of land had never been actjsd qpop. His Honor: Probably it dpes not form part of the agreement, and is therefore merely a recital Mr Macassey contended that the Provincial Council had no authority to make a reserve except iu favor of a public undertaking. The stipulations in tho agreement between the Superintendent and the pro meters of the railway showed that it was essentially of a private character, that was

to say, so long as the railway remained in the hands of the promoters, it was a piivate undertaking, subject to control on the part of the Superinten lent as to the rate of charges, and a power to purchase which the agreement vested in the Superintendent for the time being. Ordinance 308 professed to confer the necessary power for the construction of the railway. His first point was founded upon the Consolidate I Loans Act, 1867, and to perfectly apprehend that Act it would he necessary to ref' r tu some other legislation of the General Assembly during the same session. Turning tu the Public Debts Act, 1867. it would he observed that in that year the Oo'ony assumed a liability in resp ct of outstanding liabilities of all the Provincial Oovermm nts. On the same day an Act wai passed to consolidate the public loans of New Zealand, and the llt.h section of that Act provided that after its passing “no Act or Ordinance which may be passed by any Provincial Council in New Zealand for raising Provincial loans, or fur the guarantee ot interest or subsidy, shall be valid.” He (Mr Macassey) could not conceive how the Legislature cou'd express itself in clearer terms If it had been simply intended to prohibit Provinces from raising fresh loans, there would have been no necessity to have included the words “ guarantee of interest or subsidy.” His Honor remarked that the wonder was an Ordinance apparantly invalid was not dis allowed. Mr Macaesay thought that the explanation wa* easy. The agreement preceded the Ordinance ; and ho presumed the Provincial Council thought it was bound in good faith to do its best. His Honor: Properly so. But they should have procured an Act of the General Assembly validating the agreement. Mr Haggitt here observed that he did not intend to dispute wh it had been urged by MrMaca sey, that Or linam-o 307 w.is invalid, inasmuch as it contravene I the Loans Consolidation Act. He relied upon No. 308. Mr Macassey would at once refer to the oth cr Ordinance. Seeinghat 307 was admitted ultra vires he could not see how 303 could be defended, as it was sprcia'ly pass ’d, as appeared upon its face, in order tu enable effect to be given to the agreement which 3()7 professed to validate, llec ted the preamble to 308, in order to show that that Ordinance was so completely interwoven with 307 that they must stand or fall togc her. He should contend that 30t being invalid, 303 muss necessarily be so. Section 9of 308 create I a power which was an cnoroaphment upon the j ow rs belonging solely to the General Assembly. Power was there given to divert rivers, Ac , which wai clearly beyond the limits deputed to Provincial legislatures by the Act of 1866. In continuation of what he had already said, ha would assume that Ordinance 307 must be treated as if it had not been passed ; consequently the agreement depended for its validity upon the powers inherently possessed by the Superintendent, or upon the powers conferral upon him by some Act of the Assembly. He would contend that 308 was objectionable, because it was interwoven with an invalid Act; and secondly, as umiug that 307 was not open to objection, 308 wcat beyond the Hints of the {lowers conferred upou Provincial Legislatures If 307 was to be treatc I ns invalid, the agreement itself, which it professed to validate, must fail. By the agreement, the Superintendent notonlycharged tbe jetty dues for tlip payment of the promoters’ guarantee of 8 per cent, on their invested capital, but also charged the Provincial revenues with a liability to the sanp; extent. His Honor : I suppose that an Act of the Assembly which forbids a local Ordinance, prohibits anything being done by a loss formal process. Mr Macassey : Quite irrespective of that view of the case which depended on the Loans C nsolidation Act, he contended the agreement could not bo supported. The Superintend'.nt, as had been decided, had only those powers conferred upon him by law, and could not make an agreement making the revenues of the Province liable for any breach of au agreement to which lie wa* a party. (Murray v. Macandrew ; Kinnaird v. fFeatberston ; Alcock v. Fergie; and Churchward v. the Queen L. R.Q. ft.) Loiking at the agreement from a purely legal point there were several objectional features. There was a provision which enacted that in the event of the jetty dues being insufficient to make up the amount of the guarantee, the Superintendent had power to increase them, or make up the deficiency out of the ordinary revenues. Tuis raised a very important question : seeing that the obligation might extend over the period during which aSuperiutendent held office, whether he cou’d bind his successor to a fulfilment of that obligation. Again, there was a provision giving the Super intendent power to make over, at the promoter's request, any shore lands or lands beyond high-water mark ; and this, he contended, was empowering the Superintendent to do what he could not legaliy do under the Provincial Councils Powers Extension Ac', 1860. The argument had not concluded when the Court rose. Be Miller. The argument of the rule nisi calling upon Mr George Mfiler tq show cause why a writ of attachment for contempt of Court, in inducing tha Editor of the Daily Tune* to alter a report which he supposed refleeted upon him, took place yesterday. The rule was discharged, as it was considered Mr Stewart was n<4 justified in moving the Court to do what, if done, should have been done of its own accord. The respondent was refused costs.