SUPREME COURT.

Evening Star, Issue 3689, 19 July 1875, Page 2

SUPREME COURT.

IN BANCO.

Saturday, July 17. (Before Mr Justice Johnston.)

LooANj(appellant) v. Waste Land Board (respondents),—His Honor delivered judgment in this case as follows

I have frequently had occasion to express my regret that questions on the construction of Acts of the Colonial Legislature, difficult in themselves, and involving jeonsequences of the gravest import, ance to individual suitors and to the whole classes of the community, are, under the existing circumstances of the Colony, often unavoidably referred to the deeision—at ali events. In the first instance—of a single judge. I have endeavored to give the elaborate arguments in this case the closest and most careful attention which the time at my command before leaving the district would permit, and believing that farther delay for reconsideration might be inconvenient to the litigants, I am now prepared to give judgment. In the judicial intern pretation and construction of statutory provisions, raising questions of doubt and difficulty, there are certain general principles which are never to bo lost sight of. The first duty of the judge is to ascertain from the language giving rise to dispute, from its context, and from the provisions in the same statute and in others, in part materia, what is really the meaning of the language employed, attributing to words, and terms, and phrases, their proper sense, where no special meaning is attributed to them by the Act of the Legislature, and construing sentences, and clauses and members thereof, according to grammatical principles. It seems to mo not to be a proper course to begin by a hypothetical assumption of the general or special intention and scope of the enactments, founded on probabilities, however strong, respecting the policy of the Acts, or the contemplated consequences of their provisious. For if it can be said, with considerable certainty, of the language of the Legislature, either quod voluit non dixit, or dixit quod non volu.it, the judicial interpretation must be according to the meaning of _ the words themselves, and not according to a belief arising from intrinsic circumstances. If, indeed, the language be capable, by a liberal construction, of bearing tho meaning which is extriasically probable, such construction should be adopted j and in cases where there is ambiguity, probabilities may be invoked. In the case which I am aow about to dispose I think it will be found that these general principles are applicable, especially with respect to the construction of the 85th section of the Otago Waste Lands Act, 1872, on which the main question arise. But before I proceed to that portion of the case I shall dispose of that part of the argument of the counsel for the Board, which was founded upon the contention that the case is one in which the remedy must he by mandamus. It was agreed that this is a case for mandamus, because there is no other remedy, and that the case is not one for apEeal, because mandamus would lie, and the remedy y appeal is insufficient. Now, the Waste Lands Board Appeal Act, 1867, enacts (section 5) that if any person consider himself aggrieved by any decision of the said Board, such person may appeal to the Supreme Court; and the Court, after hearing the parties, shall give its decision, and cause the same to be certified in writing by the Registrar of the Court te the Board, and the Board shall be bound to follow such decision, and shall reverse, alter, modify, or confirm their decision in accordance therewith. It is not specially provided what the consequences are to be if the Board disobey the statute; but if a mandamus were necessary to set them in motion, in case they took no steps consequent upon the decision of the Court, it does not follow that this appeal is not properly brought in this Court, and that the Court is not bound to give its decision under the Act. I now come to the question of the case—the principal one being whether the Otago Waste Land Board wore or were not justified in refusing to entertain and grant the application made by the appellant for the land in question as rural land open for purchase at 20a per acre. The Board profess to have refused to do so on the assumption that upon the facts set out in the affidavit of Logan, the appellant, and tho certificate of the Superintendent (admitted by counsel before the conclusion of the argument), the land in question was not, in point of law, open for sale as rural land, having been authoritatively declared to be lands of special value, under the 85th section of the Act of 1872. Before proceeding te discuss the true construction of that section, anil to consider how far it lias been complied with, it will be proper to take a brief review of the facts appearing in the affidavit. The appellant, Logan, was lessee of a certain run, under the provisions of the Otago Waste Lands Act, 1866, for a lease of sixteen years, from 26t.h September, 1866. Under the provisions of the Otago Waste Lauds Act, 1872, section 96, a portion of tho appellant’s run was, on tho 3rd September, 1874, proclaimed by the Govemoi a Hundred, by the name of the Waikoikoi Hundred. By virtue of tho Otago Waste Lands Administration Act, 1874, section 2, a proclamation was issued by the Superintendent, delaying until the 20th December the opening of the lands in question for sale or lease, which would otherwise have taken place on the expiration of thirty days after the publication of the 3rd September. A further proclamation of tho Superintendent, under the same section, published in the ‘ Government Gazette ’ on the 9th December, farther delayed the opening of the lands till the 7th January, 1875. On the 14th December, 1874, the Waste Laud Board, through the Chief Commissioner, issued a notice or proclamation, published in the ‘Provincial Government Gazette ’ on the 23rd December, that the land in the Waikoikoi Hundred would he opened on the 7th January, 1875, for application, and that certain sections would bo open for application under tne deferred payment system. [That is, under the system introduced by the Act of 1872, sections 47-64J On the 18th December, the Board, through the Chief Commissioner, issued a notice or proclamation, published in the 1 Provincial Government Gazette ’ on tho 23rd December, that certain portions of the Hundred would be open for application, under the deferred payment system, on the 7th January, and that other sections (including the land in question) would be sold as land of special value, under the 85th clause of the Otago WasteJLands Act, 1872, on the 23rd February, at the upset price of LI 2a 6d per acre, and valuation. On tbs 22nd and 29th December the Board, through the chief Commissioner issued two notices or proclamations (published in the ‘ Provincial Government Gazette ’ on the 30th December), iutima ting that certain portions of the Hundred (including some of the lands in question) would be offered for sale on tho 23rd February, by public auction, as laud of special value, under section 85 of the Act of 1872, subject to the valuation of improvements set opposite each section; and that certain other allotments would be offered for sale as land of special value, under the 85th section, on Tuesday, tho 23rd February, at the upset price of 1.l 2s 6d per acre (without any mention of valuations for improvements). It appeared that the compensation payable to the appellant, under the Act of 1872, for the determination of his lease on the proclamation of the Hundred, and for the fencing he hod erected on the laud, had not been paid him at the time of the lastmentioned notions; but the former compensation was paid to his account on tho 37th January. The latter hud not been paid at the time of the appeal, but there was no dispute about it. A meeting of the Board -took 'place on the 30tb December, «b

which ■reflation vu passed, minutes of which were made, end afterwards amplified and entered on the records of the Board, to the effect that the valuation for fencing; on the Waikoikoi Hunored was approved, and the upset price of the land was fixed at L2 per acre; aud it Wft * resolved that the land should be sold on the sth January (although the 23rd February had been fixed before) ae of special value in the terms of clause 85 of the Otago Waste Lands Act, 1672, valuation for improvements aud compensation having been paid to the runholder, alteration of date of sale to be advertised. In pursuance of this resolutkm notices or proclamations were published by the Board in some of the Dunedin newspapers, dated respectively, 18th December, 1874: 22nd December, 1874 j and 29th December, 1874 (nil dates being pnor to the resolution of the Board); for the sale (1) of deferred payment lands, (2) of lauds of special value at upset prices affixed to sections, and (3) of special value lauds at L2 per acre. On the 7th January the appellant lodged two applications •or.lnnds within the Hundred as riiral laud, open at 20s an acre, and paid the deposit, which was duly received; and he was the sols applicant. At a meeting of the Board on the 11th January, 1875, they declined to bear the appellant's agent in support of his application, aud resolved that, as the land had been set apart as land of special value in the terms of the 85th section of the Act of 1872, it was not open for application when the application was lodged; and the Board therefore declined to entertain the application. At that meeting a certificate from the Superintendent was read, saying that, on the 15th September, 1874, he had agreed to the lands, with certain exceptions (i.a., those set opart for deferred payments), being declared lands of special value, and sold by public auction, in terms ot the 85th section of the Otago Waste Lands Act, 1872, and to the land being withdrawn from sale at LI per acre. During the argument there was produced, and admitted by the appellant’s counsel as correct, an extract from the minutes of the Executive Council of 'he Province of Otago, dated 15th December, 1874, as follow:—“ Extract from minutes of the Executive Council, 15th December, 1874, Present: His Honor the Superintendent, Messrs Eeid and Turnbull. . . . . No. 3 Ecsolved that sections 21, 23, 26, 29, block 2., and ?’ block 8., Waikoikoi Hundred, be opened for sale on deferred payments, the remainder to be sold as land of special value, under clause 85, Otago >‘> aate Lands Act, 1873, Ihe land having been improved by fencing, Ac., and compensation paid to the runholder.—A true extract.— H. Lakemam, Chief Clerk, for the Clerk to the Executive Council.” Only a small portion of the land was sold on the 7th January. Such being the state of facts as established by the affidavit of the appellant, and not disputed by the Board, the appellant contends that he has a right to treat the lands in question os rural lands, open for sale or disposal underthe 35th section of the Act of 1872, in respect of which the price, in the absence •£ competition on the same day, is, by section 86, fixed at 20s, subject to certain exceptions. On the tacts, as they appear before me, I do not think that it can fairly be contended that the land was reserved or withdrawn from sale or disposed by the Board with the consent of the Superintendent, under the 35th section, on the ground of the sale or disposal being, “holy to be, prejudiced to the public in-

The first thing to bo remarked upon the contention of the appellant is that, as soon as the Hundred was proclaimed—i.c., in September, 1874—tbe lands within it eeisad, by virtue of the Otago Waste Lands Administration Act, 1874, section 2, to be open for sole or lease until thirty days after the puhlicati°n of the proclamation, and it was competent for “J* Superintendent by proclamation to fix a date after that period, on and after which the land would be open for sale or lease j and they were not to be open till the date mentioned in the last of such proclamations. Tne Superintendent on the 30th Sept., published a proclamation delaying the opening of the Hundred till the 29th December, and on the 9tii, December he published another proclamation further delaying the opening until the 7th January. We now come to the important date of the 16th December,_when, as it appears from the minutes of the Superintendent's Executive Council, ho resolved, ns it is said, with their advice, that certain sections of the Hundred should be opened for sale on deterred payments, and the rest should bo sold as land of special value, within the 85th section of the Act. I presume that this minute sufficiently complies with the 6th section of the Act of 1872, which requires that the Superintendent shall perform every act which he is authorised to perform solely in accordance with the advice of the Executive Council, and that such advice shall be recorded on the minutes of the Council. I shall pause here to consider the construction which must be put on the 85th section of the Act of 1872. According to the principles to which I adverted at the outset, that section provides that it shall be at any time lawful for the Board, with the consent of the Superintendent, to offer for sale I y auction, or to dispose of by lease, any land coining within the terms afterwards used in the enactment. The land referred to is "any land which may be deemed to possess special value from improvements or otherwise, or in respect whereof compensation shall hare been paid to any runbolder under the Act” ; and it is provided that the offer for sale by auction, or disposal by lease, shall be made in any manner and subject to such terms and conditions and at such price as the Board may think fit. There is a further proviso that the grounds on which the Board shall deem such lands to possess such value shall in every case be recorded on the minutes of the proceedings of the Board. The first question which arises upon the construction of the section is in respect of what th© conse&t of the Superintendent is necessary; and I am of opinion that it is not necessary he should consent to the manner of sale or disposal, or the terms and conditions, which are to be such as the Board may think fit; but that he should consent on the ground that the laud comes within the description or descriptions contained in the section. Now it seems to me that there are two descriptions of land in the section, and that these ore not cumulative (as seems to have been supposed by the terms of some of the resolutions), hut are distributive, and that lands which may be deemed to possess special value, either on account of improvements which may have been made upon them, or otherwise—as, for instance, from intrinsic value, on account of the character of the soil, or in respect of local circumstances, or for similar reasons—come within the section, even if no compensation had been paid in respect of them; and, in the next place, that lands in respect of which compensation has been paid, even although that compensation should only be compensation for the determination of the pastoral lease, are also within the scope of the section. This may be a construction in some respect at variance with antecedent probabilities, but it seems to me to be the only grammatical one that can be put upon the language of the section. Now the resolution of the Superintendent's Executivo Council is to the effect that the lands in question arc to be sold as lands of special value under the 85th section, as having been improved by fencing, &c., and compensation having been paid to the rnnholder. I am of opinion that although it appears that the compensation had not at that time been paid to the runholder, the fact of the existence of improvements by fencing, &c. (which is not denied), was sufficient to justify the Superintendent in giving his consent to bring the lands in question within the 85th section of the Act. Then comes the question whether the proviso of the 85th section has been sufficiently complied with, which says “ Provided that the grounds on which the Board shall deem such land to possess special value shall in every case he recorded on the minutes of the pi oceedruga of the Board.” Now, although it might bo difflcult to hold that the first announcements of the Board, to the effect that the loud would be sold by auction as land of special value, wore sufficient to comply with the requirement of the proviso, I think, upon the whole, that it must be taken that the original minutes of the meeting of the 30th December, along with the enlarged minutes which appear on the records of the Board, show tliat the lauds were deemed by the Board of special value on account of improvements and compensation having been paid to the runholder. As it appears that the compensation was not really paid at the time of the appellant’s application, it might be difficult to support these minutes as the expression of good grounds for deeming the lands to possess special value, if the payment of compensation wore e-sen-tial for the purpose; but inasmuch as I have already intimated my opinion that the grounds are to be token as several and not cumulative, and it appears that improvements were actually made, I think, upon the whole, that I ought to come to the Conclusion that the case is brought within the proviso of the 85th section. I cannot say that I feel very confident in the propriety of this decision; and I greatly regret that interests of so important a character should depend on the decision of questious eo narrow and comparatively immaterial. Grave questions arose during the argument in respect of the alterations of dates for the sale of the lauds under the 85th section. Now, the proviso of the Act of 1874, section 2, relating to the time at which lands within a Hundred are to be open for sale, whether or not applicable to rural lauds only, seems to give the Superintendent power which might justify him not only in delaying the opening of the lands beyond thirty days by one predamation, but also in further delaying or altering the dates at which snob lands should become open, although it might he most inexpedient or improper that he should shorten the time, once published. But inasmuch as the alterations of the date for the sole in this case have been made, not by the Superintendent, but by the Board itself, the question is whether they had any auth irity to make such alterations. On this point I feel obliged to come to the conclusion that, as the 85th section gives t e Board power, with the consent of the Superintendent, at any time to offer for sale or dispose of by lease the lauds therein described; and as they may do so subject to such terms and conditions and at such price as they may think fit, they had the power—whether they have prudently exercised it or not —to settle and alter the time for the disposal of tho lands by auction, ns well os to determine their upset price. I think, moreover, that these lauds, having been once brought within the operation of section 85, cannot again be treated as rural lauds under sections 35 and 36, at ali events, witho it a recission of the resolution of the Board, with the consent of the Superintendent. I am of opinion, therefore, jhat this appeal must be dismissed, and that a certificate should be sent to the Board, to the effect that their decision should be confirmed, in the terms of the Waste Lands Boards Appeal Aet, 1867, section 5. I Certificate accordingly. i

Mr Maciissey asked leave to apueal, which Iras granted. Costs to the respondent.