RESIDENT MAGISTRATE'S COURT.

Evening Star, Issue 3179, 29 April 1873, Page 2

RESIDENT MAGISTRATE'S COURT.

Ykstkepav. (Before A. C. Strode, Esq., R.M.) IMPORTANT CASE. Blueskin Road Board v. Souness. Tho case was adjourned from Friday last.--Mr Harris for the plaintiffs, and Mr Stout for defendant. —Mr Harris called Mr M'Farlane, Commissioner of the Hoard, and on putting in the precept Mr Stout objected on the ground that tho seal had not been affixed by tho General Road Board, or by any member of that Board, but by a clerk in the Road Board office,—Mr Harris contended that the precept could be received.— His Worship said it appeared to him that the seal had been affixed by a person not authorised, and lie not a member of the Board : and there being no minute of tho Board authorising the seal to be affixed to the precept by tho person who did, he was of opinion that the precept could riot be'admitted. ri-Mr M'Farlane was then examined : The defendant’s name appeared on the a?setament ; r6ll, rind the amount owing by him was L 5 1 .j;h—George Mawson, clerk to the plaintiffs, said! The assessment roll produced was the original one. The namo’qf .ttyc dant appeared on the coll, uri had not paid the rate. Witness was one of the commissioners appointed to hear objections, and the defendant appeared and stated his objections. The Commissioners sent in a report to the Board recommending a fresh valuation. Tho Board replied that the Commissioners wore to do their duty, and the latter again met and confirmed the assessment roll produced. In answer to his Worship, witness said he did not think that tho ratepayers had an opportunity to object to the rate at the scGOipl riveting of the Commissioners. —Mr Stout said the reason why ttys defendant had not paid the rate was tfiat he, together with a groat number of the ratepayers, objected to the unfair way in which their properties had been assessed ; that the whole of the rates had been spent on one road ; that tho rate had been forced on them ■without their having an opportunity of objecting; and that the Commissioners had, after hearing objections, recommended a fresh valuation ; but the General Hoad Board said they had no power to order a fresh valuation, and, therefore, the Commissioners met and passed the assessment roll, when they had already recommended the properties should be fresh valued. Because of these and other matters the defendant would not pay a rate which was not just. He moved for a nonsuit on several grounds, the principal being—(O' No precept authorising the rate had been issued by t)io*General Road Board. (2.) That the powers of tho ; lofcal'board nevor sus " pended by the General Board ; therefore no rate was payable to the Commissioners. _ (3.) Notice in terms of schedule 36 was insufficient; and (4.) That tho reference back of the report to tin} (Lmiijissioricrs was illegal. Addressing himself to the second pointy the learned counsel drew attention to the peculiar worefijrg of the 20Sth section of the new Roads Ordinance, in drafting which its framer must either have overlooked tho Ordinance of 1865, or have been thoroughly careless. The first-mentioned section provided that the rates should, after the first appointment of trustees for the district under the Ordinance u be clue or payable to, or leviable for such trustees.” The Ordinance of 1865 said the rate was due to the collector, payable to him or any other person appointed by the General Board, but pot to the local board at all ; and in all cases was leviable by the General Board. Supposing his Worship to be aguinst him on the first objection, and to say that the General Board did suspend the powers of the local board, though he contended the Board minutes showed the opposite, he submitted there were no local board trustees in the district; only commissioners. There was not a single word in the Ordinance of 1871 to show that the local board or trustees meant the same as commissioners. Under the Ordinance of 1865, the commissioners had the “several rights, privileges, and duties of the board,” but that did not give them power to recover the rates, which not being leviable by the Board was not at all leviable by the commissioner. In short, no rate was issuable until the precept was issued; and here the admission or the precept had been rejected, andas itcould not be relied on, no rate was recoverable.—Mr Harris contended that the precept had been issued, and that the one attempted to be put in evidence was a good one, Everything that was required to be done uiuler 'fhfe Ordinance of 1865 had been done : the precept was' in iho fprin adopted by the General Board, and used by it in all cases from the commencement of its creation down to the coming into operation of the Ordinance of 1871; arid to hold that it was not good would be eq'uivabmt t‘) holding that every rate levied up to the present tune was illegal.—Mr Strode : It is only on one question that I decide: on the question actually before me—that of seal, —Mr Harris submitted if this precept was informal every one previously issued was informal, and consequently every rate before levied was illeSil. But there was a way out of the difficulty, 'e did not rely so much on the precept, as that there was sufficient evidence to prove that everything required by the Ordinance had been done. There could be no doubt that the rate itself was authorised, as appeared by the General Board’s minute; and he submitted, even supposing that a'prec.ept had never been issued from that time till the" new Ordinance came into force, that there still was sufficient evidence before tho Court to_ show that the rate was authorised to be levied; and that it became an asset of the new board, and was recoverable by it. There was nothing m the second objection, because the local board was not suing by a commissioner. He could not see how the objection could be sustained in the face of the direct testimony, and the Board s minute informing Mr M'Farlane of his apj ointment; and also, in the face of tlifi Superintendent s proclamation, which he conceived must be taken as showing .ihat proper consent haq wen

given by the Board, or the proclamation would not have been made. The third objection that the notice was not a good onc,_ because Maw',ou was not clerk when he signed it, was a jnltry one, and scarcely needed answering, because the evidence was that Mawson was gazetted collector at the time he signed the notice —His Worship remarked that the objection was that there had been no appointment. Mr Harris contended there had been an appointment under minute. On the 3rd August the General Board passed a resolution authorising its chairman to confirm all appointments made by local boards without submitting them to the Board at its ordinary meeting : and the proclamation was by the Superintendent, who was chairman, so that the appointment was actually made by him, and he apprehended the Court could not go behind that. Everything that had been done was regular.—Mr Strode : Regular, so far as the local board was concerned.—Mr Harris: There was scarcely anything in the fourth objection, as the power that appointed the Commission could request it to go over its work twenty times if necessary. The report had been sent back for revision, and was not a final one.—His Worship reminded Mr Harris of the objection about the rate being due and payable to a local board, when none was in existence, only a commissioner. —Mr Harris submitted there was a local board in existence, as the evidence proved. The rate became the property of the present board on their appointment in September.—Mr Strode ; The contention is that it was not a local board, only a commissioner. —Mr Harris : That did not alter the question, which was whether, at the time the first election and appointment of a board for the district were made, the rate was leviable ; not whether it was so at the time the commissioner was appointed. It did not vest in the local body Corporate until the election of trustees, which took place iu September.—Mr Strode: But the point is whether a commissioner can be called 11 the local board. Mr Harris; The question does not arise. We are not suing in the of the Commissioner, and consequently cannot be bound by bibb . A commissioner does not appear in connection with these proceedings. —After further argu* ment, his Worship said he held a strong opinion on the first two points, but thought it advisable to defer judgment.