SUPREME COURT.

Evening Star, Issue 3604, 10 September 1874, Page 2

SUPREME COURT.

IN BANCO. Wednesday, September 9. (Before His Honor Justice Chapman.) MANDAMUS.—EX PARTE BELL. .Argument in this case was continued. . Haggitt said the practice of sending in written applications had probably been continued without authority of law, in consequence of its having been in vogue under the old land regulations. Somethin would turn o D tho word “application,” and he would ask the Court to notice tho terms in »hioh that word was used in the Southland Watite Lands Act. A noth Ur point was that ihere could bo no such thing as a bargain between individuals when one party was meaning one thing and the other party was meaning something else. Even supposing the applicant and the Waste Lands Hoard Ui deratood each others—that they {both partics) agreed upon LI per acre—the qn&tibn rtUl rvqjatoiti wbttfctf tM? Kwfcfr*

Land Revenue had not functions of his own to perform in respect to moneys he had to receive. *

Mr Mni’h said there was no weight in the preliminary objection that the writ was improperly addressed. The argument that the same rules applied in the event of mandamus being granted in the same way as in an ordinary action had no force. He hoped to be able to show that so far as the offering of lands was concerned there was no distinction iu principle as between land offered under the Southland Waste Lands Act and land offered in Otago proper under tha Otago Waste Lauds Act, although there was a difference as a matter of practice. Section 23 r gulated the conduct of the Commissioner of Crown Lands in that particular—that all lauds, with certain exceptions, should be open to the public to be taketi up at 20s per acre. It was most clearly a standing offer made by the Crown, from the Legislature, to auy person to take up all or any of such lands at the specified price of 20s per acre ; and therefore when a person properly signified his desiie to take up any such lands in the mode prescribed by the a ct, that signification amounted to an acceptance of the v tauding offer made by the Legislature, aud from that moment a contract was established binding upon the Crown, and which contract the applicant had a right to have carried out, subject, of course, to compliance with the requirements laid down iu the statute. Mr Haggitt had argued that it was intended that nothing more than the name of the applicant should be placed ou cn© application book, so that the intention of the applicant to apply for land when the Board mot should not be known to others ; but he (Vlr Smith) submitted that that was a very forced construction to put on the Act, and a most unreasonable one in this instance T here was uothing in principle to distinguish this case from that of- O’Kane v. The Waste Lands Board of Otago, and which his Honor had decided in that Court; and he advanced that contention on the ground that the Waste Lands Act ©f Southland threw open the whole of its rural lands, with certain exceptions, to be selected by the public, as was done by the Otago Waste Lands Act of 1872. This was the principle by which O’Kane’s case was decided. Tne learned counsel contended that it was the right of Mr Hell to have the land he had applied for, as being in accordance with the clear intention of the Legislature. There, was no other remedy in such a case as this, he contended, than to call upon the Receiver of Land Revenue to do his duty, and receive payment at LI per acre : to proceed, in act, by mandamus. He thought the cise ot Tole v. Regina fully established the point that the Receiver of Land Revenue was one of those officers upon whom statutory duties were cast, and therefore he did not come within the definition of merely a Ministerial officer of the Crown, who could not be controlled by mandamus. All the cases cited by the oth-r side were clearly distinguish able from that before the Court, in which it was me.ely required to compel a purely statutory officer to do his duty. He also relied ©n the Civil Service *ct of 1836, as protecting the Receiver of Waste Lands Revenue, as well as other officers of tha Civil ervice. against any such capricious or unjust < xercise of power as was content p ated by the other side—i.«., dismissal for doing what was declared by the Supreme Court to be his duty. It was conteuded by the other side that there was no contract, but he maintained that there was a contract, and no. order in Council passed subsequently could have the effect of substituting a new term iu that contract, namely, L 3 instead of LI. He submitted, therefore, that under all the circumstances the rule should be be made absolute. Judgment was reserved.