SUPREME COURT.

Evening Star, Issue 2990, 18 September 1872, Page 2

SUPREME COURT.

IN BANCO,

Tins Day. {B/;fopc Mr Justice Chapman.)

Maclean and another v. Macandrew and others. —'Ibis was a motion to dissolve an injunction granted expar/e. The ense made by the plaintiffs in their declaration is this : In the first three paragraphs they make title to the station or run No. 169, under a lease from the Crown granted under the provisions of the Waste Lauds Act, 1866. The lease hears date July 5, 1867, and is for a term of fifteen years and five months, to be computed from July 4 in the same year. Before the making of this lease—viz., on January 29, 1867, ihe then Superintendent (Thomas Dick, Esq ) issued a proclamation (under authority delegated to him by the Governor), proclaiming the lands afterwards comprised in the said lease as a goldfield, and this proclamation has never been revoked. It is then averred that “ no goldfield or gold-mine has ever been discovered or proclaimed upon the said pastoral run. ” On the 2iSth December, 1870, the then .Superintendent, James Macandrew, Esq. (one of the defendants), issued a proclamation purporting to cancel the lease of the plaintiffs over 17,360 acres of the run. 'lbis proclamation is stated to have been made under the 16th section of the Goldfields Act, 1866. On the same day another proclamation was issued by James Macandrew, Esq., setting apart Crown lands on tho Otago goldfields for the purpose of granting agricultural leases, the land so set apart being the 17.360 acres comprised in the former proclamations.

It is averred that under the last-named pro-' olamation the defendants are attempting to dispose of, for the purpose of agricultural leases, the said 17,300 acres or a large portiod thereof, and are thereby attempting to defeat the provisions of the 33rd section of the Goldfields Act, whereby no more than 5,000 acres can be selected -from any run within any proclaimed goldfied. On the same day a third proclamation (or order in Council as it is called) was issued, proclaiming and declaring “ all the Crown lands specified in the schedule (comprising in fact the same 17,360 oeres) open for sale in sections of the size and form in which such lands have already been surveyed, and as the same are laid down and delineated on the maps in the oflicc of the Chief Surveyor of the Province of Otago.” It is then averred that the defendants, under the last mentioned proclamation, are attempting to dispose of absolutely some portions of the 17,360 acres, the precise extent of which plaintiffs arc unable to state, and that the defendants have publicly called for applications for the same. The grounds upon which the defendants seek to have the injunction removed are—l. That the plaintiffs have shown no equity in their declaration to entitle them to an injunction. 2. That the acts complained of are “acts of State and Government,” and that the Supreme Court has no jurisdiction to restrain such acts ; 3. Similar ground, in other words, he., that the proclamations wore issued by the defendants, or some of them, on behalf of the General Government, under powers lawfully delegated to them. 4, 5. and 6. That no cause of action is shown against the Superintendent or the Commissioners of Waste Lands, or against the members of the Executive Council of the Province, as members of the Waste Lands Board of Otago. 7 and 8. That no wrongful act is shown to have been done by the defendants in either of the above capacities. 9. That the plaintiffs’ lease is not valid as against the Queen. 10, That the said lease has been lawfully cancelled. 11. That the declaration does not show that the defendants are attempting to dispose of mote than 5000 acres of land (meaning the land claimed under the lease) for the purpose of agricultuial leases, or that they are attempting to defeat the 33rd section of the Goldfields Act, 12. That the defendants, Gillies, Duncan, and Hughes are no longer members of the Executive Council, and have no control over the proceedings of the same. 13. That the plaintiffs have suppressed and misrepresented material facts. His Honor, in delivering judgment, said the question submitted to the Court was whether the defendants, acting entirely under legislative authority, had gone beyond the powers ppesnf'j bpcj by the Goldfields Act of 1866 It Wi?s alleged'that they had generally exceeded tffclr powers, to the plaintiffs’ prejudice, and that constituted'the equity ou which the latter took their stand. But apart from that question, which went to the whole mei its, other questions were raised, and these required to he considered first. Kor the plaintiffs, it was argued that the motion for dissolution of the injunction came too late. But it seemed to him, from the simple question raised upon the merits, that the decision on the motion would decide, or at least it might be hoped to decide, the case—subject, of course, to the opinion of the higher Court. It was, in fact, substantially equivalent to a demurrer for want of equity, and therefore he did not think himself precluded from entertaining the motion, or compelled to stop the case. Proceeding to deal with the points raised, his Honor went on to say that he considered those relating to irregularity of date of lease, and the absence of an averment that the lease was issued in consideration of the surrender of the pre-existing lease untenable, and that the voidablcnesa of the lease was only determinable by scire facias, The next point, that the actsofthpdefendants were “acts ofstata,” and therefore not cognisable by the Court, must be taken that the defendants for the present purpose were exercising the office of Governor, and were protected from immunity in a manner similar to him. The point seemed to him (the learned Judge) to he divisablo into two questiuns—(l) whether the Governor’s immunity extends to the defendants, and (2) whether the proclamations under the Goldtields Act 1 are ‘’acts of te'fte” as to he removed from question ip a superior Court. This briefly stated embraced all the grounds comprised in the motion from the second to the eighth inclusive. Granting the Governor’s personal immunity, which is founded on principles of public policy, not only from actions, but from such writs as mandamus, prohibition, quo warranto, and injunction, wffat was there in any of the cited cases to ! show that a like immunity was extended to subordinate qfficers; )f they overstepped the powers and authority delegated to them? All analogy W3S jujped the other way. The court had,'it suemcj to ffim, jurisdiction to examine into the acts complained of, by which it was alleged the defendants had exceeded the powers conferred upon the Governor, and invade the plaintiffs’ rights. If the Court had no such jurisdiction, the subiect be left without remedy, contrary to one of the most °' r principles of the law. Another objection, that tlj.o Waste Land Board was a court, and as such, its members vnro not liable to action, was met by a two-fold answer—(l.) The Board had administrative as well as judicial functions ; and here they were not complained of for any judicial proofeding; (2.) under our proceedings the word action had not the same limited meaning as in England. As a court, even though not liable genera'ly to an action in the English sense, they were liable to other restraining proceedings, and if they, acting administratively, were instrumental into carrying into execution an illegal proclamation, •which was the question to be examined, bethought they might be restrained by injunction. If not, he again asked, where was the remedy ? Coming to the merits, his Honor said he had no doubt the defendants had gone beyond the powers conferred upon them by statute, and that the injunction ought to be sustained. All authority should be strictly pursued, a fortiori where powers were given by statute they could not lawfully be overstepped. Ibis was the case where no conflicting interests were affected ; it was more especially the case where any departure from the statute invaded private rights. The 33rd section of the Goldfields Act [i ere road] under which the two last proclamations purported to have been issued was a wise and salutary provision. It made the requirements of agriculture paramount to pastoral occupation, as they ought to be ; and at the same time gave protection and time to the lessee by placing a limit upon the quantity of land which could be taken atone time. The language of the section was clear and unambiguous. To the extent named by the statute, a proclamation would be irresistable, and when half the quantity shall

have been selected and actually occupied, a second proclamation touching the same selection would be equally unimpeachable. But here the proclamations at once set apart and laid open for selection 17,360 acres, and that was beyond the authority given by the 33rd section. But it had been said that it had not been shown that the defendants were attempting to dispose of more than 5,000 acres for the purpose of agricultural leases, or that they are attempting to defeat the 33rd section of the Gold fields Act. What they intended to dispose of was of no consequence. Their excess of authority was in selecting and setting apart a quantity of land more than the Act allowed. Considering, as he did, that the language of the section was so clear as to obviate the possibility of two interpretations, it seemed strange that the defendants should have misinterpreted its provisions. They probably thought that they could fall back on the 16th section, made for another purpose, and then having got rid of the lease so far as it related to 17,360 acres, proclaim the whole open for selection under section 33, He was of opinion that this could not legally be done. If gold had been discovered on the land after the act to a sufficient extent to be called a “goldmine” or “goldfield,” then, no doubt, the Governor bad a very large discretion to cancel the whole or any part of the lease; but the Legislature could not have contemplated that this discretion would be exercised beyond the requirements of the c ase, that was for mining purposes ; and, when the three proclamations we:e read together, it became clear that the power under section 16 had been resorted to not to open the land for mining purposes, but tP enable the -defendants to take advantage of the powers conferred by section 16 in order to enable them to deal with more land than section 33 allowed ; and this was rendered more obvious from the fact that the three proclamations bore date on the same day. If the first were sustainable on the ground that a“go‘d mine” or a “goldfield” had been discovered over the whole or a considerable part of the 17,360 acres, so as to render it expedient, under the wise po'icy of the Act, to open the same to the operations of the miner, then what became of that object when the whole of the tame laud was thrown open for selection for agricultural purposes ? The two last proclamations acted in defeasance of the first, and against the spirit of the 16th section ; and the first seemed to have no other use than to enable the defendants to escape from the trammels imposed by. the 33rd section. Injunction sustained, and motion dismissed with costs. Mr Carton obtained leave to appeal.