SUPREME COURT.

Globe, Volume XX, Issue 1391, 31 July 1878, Page 3

SUPREME COURT.

Tuesday, July 30. [Before his Honor Mr Justice Johnston.] His Honor sat in Chambers and in banco at 11 a.m. lIS' BANCO. The Impounded Land Fund. AVON EOAD BOARD V. THE COLONIAL TREASURER. Mr Joynt —May it please your Honor, I have to move on behalf of the Avon Road Board for a rule nisi calling upon the Colonial Treasurer to show cause why Her Majesty’s prerogative writ of mandamus should not issue commanding him to pay to the said Road Board the amount still remaining payable and unpaid to the said Road Board on account of the sura of £2696 4s lOd, being the share of the sum of £81,441 os Id to which the said Road Board was entitled according to the apportionment of the Council of the County of Selwyn amongst the several road districts in the said county pursuant to the provisions of the Financial Arrangements Act, 1877. I will now read to your Honor the affidavit of John Leaf Wilson, chairman of the Avon Road Board, which is as follows : “ John Leaf Wilson, of Christchurch, in the district of Canterbury, commission agent, do swear — “ 1. That I am the chairman of the Road Board of the Avon district, in the county of Selwyn and provincial district of Canterbury. “ 2. That on the 31st of December in the year of our Lord 1877 the several sections of the Counties Act, 1876, which are enumerated in the third schedule to the said Act bad not been brought into force in the said county of Selwyn. “ 3. That on the said 31st day of December, 1877, the amount of the balance of the land fund of the provincial district of Canterbury within the meaning of the 9th section of the Financial Arrangements Act, 1876, and divisible amongst the several counties in the said district as therein provided was the sura of £315,675 Os sd, as appears by a statement of receipts and expenditure of land fund of the several provincial districts for the quarter ended on the said 31sfc day of December, 1877, and showing the balances on the said last-mentioned day under the said last-men-tioned Act, which statement was published in the “New Zealand Gazette” issued on the 24th day of Januay, 1878. “ 4. That the proportion of the said sum of €315,675 Os 5d which whs payable to the said county of Selwyn, and divisible amongst the several road districts in the said county under the provisions of the said last-mentioned Act was the sum of £89,441 5s Id, which said last-mentioned sum was duly apportioned by the Council of the said county of Selwyn amongst, the several road districts pursuant to Bp* the said last-mentioned Act. PL « 5. That the share of the last mentioned sum to which the Road Board of the Avon was entitled under such apportion-||j|pk-ent as aforesaid, and which pursuant to the lt „ divisions of the said Financial Arrangements 1876, and of the Public Revenues Act, wtiM 1877. ought to have been paid to the said rf l! ftoad Board by the Colonial Treasurer within BBgninetv days of the said 31st day of December, M&1877, was tho sum of £2696 4s lOd. Pm << 6. That the said sum of £315,675 Os sd, lilting such balance of land fund as aforesaid, lv?as not paid over by the Colonial Treasurer, V,-, required by the said last-mentioned Act, and in consequence of such non-payment a iff meeting of the chairmen of several of the Road W Boards in the said provincial district of Can8r terbury was held on or about tho 3rd day of July, 1878, of which meeting I was elected chairman, and in accordance with a resolution passed at the said meeting I on the said lastmentioned day transmitted to the said Colonial Treasurer a telegram in the words and figures following, that is to say : Christchurch, July 3rd, 1873. To the Hon. the Colonial Treasurer, Wellington. Committee of Hoad Board chairmen now sitting re payment of land fund. Will you he good enough to inform them whether balance due was remitted before 30uh June, according to Government promise, or has been remitted since; also a statement of total amount remitted to Road Boards in County of Selwyn on account of such balance. Please_ reply as soon as possible, as the committee is waiting. “ 7. That on the same day I received from tho Secretary to the Treasury a telegram in reply to my said telegram, in the words and figures following, that is to say Government buildings, July 3rd, ISTB. J L. Wilson, Esq., Christchurch. Balance of Canterbury land fund forty-seven thousand six hundred and sixty-eight pounds and sixpence. Share of Conn y of Selwyn in that sum was thirteen thousand five hundred ami seventy-one pounds nine and live pence, which was distributed amongst Road Boards on 29th June. Batkin, Secretary to Treasury. « 8. That on tho 4th day of the said month of July I transmitted to the said Colonial

Treasurer a telegram in the words and figures following, that is to say ; Christ burch, July 4th, 18 r S. The Hon. Colonial Treasurer, Wellington. '1 hanks f r telecr ira. '! ho £l3 571 9s 5d said to have been distributed on the 29th of Juno h is not yet reached oad Hoards. Will you tin good enough to fu nidi Avon Road Board, of which I am chairman, a list of the deductions whi h reduce the sum of £31.5,000 in hand on tho 31st December to £47,000. J. L. Wilson, Chairman of Road Board Conference. “ 9 That on t he sth day of the said month of July I received from the said Secretary to the Treasury a telegram in the words and figures following, that is to say : Government Buildings, 1.15 p.m. July sth, 1873. J. L. Wilson, Esq., Christchurch. The accounts arc being prepared and will be published shortly. O. T. Batkin, Sec. Treasury, “10. That on or about the sth day of the said month of July the said Road Board of the Avon district received through the Bank of Now Zealand at Christchurch, as the share of the said Road Board, of the sum of £13,571 9s 5d mentioned in the said telegram of the Secretary to tho Treasury, dated the 3rd dav of the said month of July, the sum of £416 5s 4d, and tho said Road Board of the Avon district has not received any further or other sum of money for or on account of tho share of the said Board of the said balance of land fund to 31at December, 1877. “ 11. That so far as I am informed and believe, no such accounts as mentioned and referred to in the said telegram of the secretary to the Treasury, dated tho sth clay of July have yet been published, and I verily believe that tho said last-mentioned telegram is not hona fide, and that no such accounts as are therein mentioned are being prepared or are necessary to be prepared, and I verily boI lieve that tho said telegram was sent for the sole purpose of delay. “ 12. That the said Road Board of the Avon district is desirous of having her Majesty’s Prerogative Writ, of AfarecZawi/s-issued out of this honorable Court to the said Colonial Treasurer, commanding him to pay to the said Road Board the amount still remaining payable and unpaid to the said Road Board on account of the said sum of £2696 4s lOd apportioned to it aforesaid.” I will now put in the “ Gazette ” of 24th January, 1878, which contains a statement of accounts by the Colonial Treasurer for the quarter ended 31st December, 1877. This your Honor will see comprises a debtor and creditor account as regards the lard fund of Canterbury, and the balance for distribution amongst the Road Boards, as provided for by law, is there shown as £315,675 ss. Ilis Honor —You rely upon that, Mr Joynt, as being an admission by the Colonial Treasurer that he has a certain amount in his hands for tho purposes contemplated by the Act. Mr Joynt—Yes, your Honor, under tho Financial Arrangements Act, 1876, to which I shall draw your Honor’s attention presently, certain provisions are made for the payment to the Road Boards. His Honor—Rut, Mr Joynt, there is nothing on the face of tho affidavit you have read to show that the Government were aware that any allocation had been made by the Council of tho county to Rond Boards. Hence, so far as the Board for whom you appear is concerned, the Government may rot know how much is duo to it. You sec, Mr Jovnt, in a case of such importance as this it is necessary that we should proceed with very great caution. Mr Joynt—Yes, your Honor, bub I would desire to point out in answer to this that the Government have already sent us a sum of money. Hence I submit, that they must be taken to be aware of the allocation having been made by the Council us provided by law. The Financial Arrangements Act is tho basis upon which tho allocation is to be conducted. His Honor —That may be so, but on tho face of the affidavit how is it arrived at so as to make out a prima facie case that a larger gum than the Colonial Treasurer admits hy payment is actually in the hands of the Treasury for payment to Road Boards? Mr Joynt—l have already shown your Honor by the production of the accounts, signed by an official of the Treasury, that must bo taken to he an admission, that £315,000 was the ascertained b dance, all the deductions having been made that were required by law. His Honor —But, Mr Joynt, I don’t see as regards paragraph 4 of the affidavit how it is arrived at that the proportion of the £315,000 coming to the County of Selwyn is £89,000. We ought to have facts on an application for a mandamus like this. Mr Joynt —There are no facts obtainable your Honor except the calculations arrived at on the basis of tho Act. His Honor—But you don’t state, Mr Joynt, that this is tho way in which the proportion due to the County of Selwyn is arrived at. This seems to me to be the whole question of the case. You must, in applying for a mandamns, show that the Treasurer has money in his hands applicable to these purposes which has been demanded and refused I want to know if you rely upon the sum not being paid over? If so would it not be impossible for tho Treasurer to do his duty unless you show that the County Board has done its duty by apprising the Government of the allocation made so that the proper amount may be paid over to the Road Boards ? Mr Joynt—l shall submit, your Honor, that the Government arc estopped from saying this, because a certain amount has been paid over. Thus the Government, though we have not so stated it, must bo taken to have been informed by tho County Council of the allocation having been made under the Act. His Honor —That may be so, but in applying for a mandamus you must show that you have a right to receive, and also that you have demanded payment and been refused. Mr Joynt—l submit that if I show a constructive refusal by the Treasurer to do the duty cast upon him hy the Legislature, that that will be sufficient. His Honor—But you must show that the Treasurer has been made aware by the County Council of the amount of appropriation which has been made to the Road Boards. Mr Joynt—l would point out to your Honor that we need not do this. Wo cun assume that this has been done, because some amounts have been paid. His Honor—We don’t know the reasons which have induced the Government to refuse payment. Mr Joynt—We have tried to get the reasons, as your Honor will see from the telegrams I have put in. 1 will read your Honor the 15th section of the Financial Arrangements Act, 1876, which is as follows : —“ The Colonial Treasurer may make temporary advances out of the Consolidated Fund to meet payments authorised by this or any other Act to be made out of Land Fund before it is known to which of the accounts provided by section four tho same are chargeable ; but all such payments shall be charged against the proper account as soon as the same can be ascertained, and such advances forthwith repaid to the Consolidated Fund.” Your Honor will there see that temporary advances may bo made, but so soon as the accounts are ascertained to which such advances are chargeable they are to be repaid. His Honor —1 think, Mr Joynt, that the paragraph of Mr Wilson’s affidavit, with regard to the hona fidrs of the telegram from the Colonial Treasurer, might be omitted, as though Mr Wilson may believe it, ho alleges no grounds. Mr Joynt—This is not a material point of our case, your Honor, and might be left out if necessary. Ills Honor—Well, Mr Joynt, you must, show that there has been a demand for the money, and that it has been refused. Mr Joynt I submit that there has been a constructive refusal, your Honor, His Honor—You have asked tho Government “ How is it that wo ought to receive £315,000, and now you tell us there is only something like £41,000. Mr Joynt—Your Honor will see from the telegrams that there had been previous correspondence. What the meeting wanted was to have satisfactory information as to how and (when the money was to bo paid. His Honor—You sec, Mr Joynt, you might have a very strong case, on political grounds, as to the malfeasance of the Government, nod

their harsh treatment of the Boards, hut still you might not have a ease for a mandamus. Mr Joynt—l will show your Honor in a few words that we have a good case for a mandamus. ills Honor —You may tell us how the balance is reduced, and the Government say that the balance of £19,000 is ascertained. Mr Joynt—That, I take it, is a constructive refusal to pay over any more. I submit that dealing with the Government in this matter is the same as dealing with a private nerson. What T say is this, that the balance of the Canterbury land fund due to the County of Selwyn ’on the 31st, December was not liable to any further deductions whatever. If I cannot prove this, I have no case. If the Colonial Treasurer has power to deduct money from the land fund other than as provided by law, and ascertained and shown in the bal inco sheet published officially in the “Gazette,” then I cannot make out my ciso. The 4th and 9th sections of the Financial Arrangements Act of 1576 provide the deductions which shall bo made from the land fund, and give the various objects to which it shall be applied, and also provide for the payment of the balance of the land fund of each district after payment of the charges mentioned in section 4 to the counties. Iho proportion of such payment is fixed by section 9 to be three-fifths, in proportion to the area of counties, and two fifths in proportion of the subsidies paid thereto. [Sections 4 and 9 read.] Your Honor will see that, by these sections read, in conjunction with the statement of accounts signed by the Treasury officials which I have put in, that this money is available for payment as directed by section 9, without any further deduction. Then section 4 casts upon the Colonial Treasurer a duty from which I submit he cannot get away. The 6th section provides for certain deductions on account of the permanent debt. There is also a provision in the 10th section, by which Treasury bills can be charged against the land fund under certain circumstances. Now, if your Honor will look at the “ Gazette” in which the statement of accounts appears under the head of Treasury bills and advances made out of colonial revenue, you will see that there is no money appropriated for either of these items, so that no money is chargeable on these accounts. I would now direct, your Honor’s attention to section 16 of the Public Revenues Act, 1877, which provides as follows : ” 16. The balance of land fund of any district payable under section nine of the Financial Arrangements Act, 1876, in respect of tho half-year ending the thirty first day of December, one thousand eight hundred and seventy-seven, and not paid at that date, shall, notwithstanding anything in the Financial Arrangements Act 1876 Amendment Act, 1877, or this Ac', be payable and shall be paid as is provided in the said Financial Arrangements Act, 1876, within ninety days of the said thirty-first day of December, one thousand eight hundred and seventyseven.” Now tho affidavit is to the effect that this has not been done. His Honor —But it does not go on to say that notice of the allocation having been made, has been forwarded by the County Council to the Government. Mr Joynt —But, your Honor, we say this, that the Government have already paid part of the money, which they would not do unless they had been informed that such had b'en done. As regards English cases on the point, I will cite two to your Honor, in one of which a mandamus was granted on an admission by the treasurer that the money was available for the purposes for which it was voted by the Legislature. Tho other is a case in which it was refused, but on a different ground. In the latter case the judgment of Mr Justice Blackburn upholds my contention. [Case cited, the King v Lords Commissioners of Treasury, 4, A. and E,, p. 206 j This case, I think, is not even so strong as ours. In this case a retiring allowance had been granted to an individual, which the Treasury refused to pay, except under certain conditions, which it was held they had no right, to impose. His Honor—Your contention is, Mr Joynt, that we must take it on the affidavit and production of the statement of accounts published in the “ Gazette ” that there is an admission on the part of a qualified officer that the money available is in the Treasury. Mr Joynt We must take it to mean that tho money is actually in the Treasury. His Honor—l am not quite so sure of that. Tho Treasurer in accounting between himself and the public says that is the amount he is accountable for. In issuing a mandamus it must be shown that he has refused to pay the money. Mr Joynt—But that money must be in the hands of the Treasurer, because under tho Act it can he applied to no other purpose. His Honor —I am rather doubtful whether they do not say that the amount as stated to be in the Treasury is given ns what they are liable to account for or answerable. It might be a case for a writ of right, but perhaps not for a mandamus. Mr Joynt —But the Act says that this money must be paid for a specific purpose, and could not be used for any other, or mixed up with any other portion of the revenue. There is a specific duty cast on tho Treasurer to pay this according to law, and he, with the Act before him, and knowing the deductions to bo made, admits a certain balance, and publishes it in the “Gazette.” The other case which I will quote to your Honor is Regina y Lords Commissioners of the Treasury, L.R.Q.8., 3, 27 (case cited). This case, in which the mandamus was refused, was very different to the one which I previously cited to your Honor. In the former, the revenue was voted by the Legislature for the use of her Majesty, and no specific directions were given to the Treasury to pay it to any specific purpose, as is the case with respect to the land fund here. I will read, your Honor, a portion of tho judgment of Mr Justice Blackburn which upholds my contention. [Read.] I would submit to your Honor that the whole balance of the land fund as defined by statute i* legally payable without any deduction whatever. This your Honor will see is a broad dist inction from the case I have just cited. If the Government were dealing with (he land fund as a whole, it might bo said that they did not know what amount was payable. But it is not so. The amount has been ascertained, and the “ Gazette ” containing the statement of accounts giving in detail the items of deduction has been published. His Honor—l munt say, Mr Joynt, that I am quite in the dark as to what reasons the Government may have for making the deductions. Mr Joynt—l may say, your Honor, that I recently read an article in a local paper, extracted from a journal which is supposed to be tho mouthpiece of the Government —I refer to the “ New Zealander ” —in which it was argued that tho Government had a legal right to deduct the amount of £IOO,OOO for the Lyttelton Harbor Works, and 6124,000 for arrears of survey, I shall ho quite prepared to show that both these dedu ’tions are clearly illegal. I will ask your Honor to grant the rule, and let it be argued. His Honor —The only difficulty I have in the matter is whether, on the face of the affidavits, there is enough to show that there has been a specific demand for the payment of the money, and that it has been refused. Mr Joynt —It would bn very difficult in this case to do that. Under the Public Revenues Act the money was payable ninety days after the 31st of December, We waited beyond that time, and then made application. The Government have said all along that they would pay ns. His Honor—Have you given notice of this motion? Mr Joynt —No. His Honor—You have answered one of my objections. Money has been paid to tho Road Boards, so that wo must assume that the requisite notice from the County Council that tho amounts have been allocated to the Road Boards must have been given. I think it will bo better for me to consider the question of granting the rule, and give my decision this day week. Mr joynt—Unless your Honor has a very strong opinion that I have no case whatever, I submit that tho role should bo granted now. The case I have put before your Honor is very much stronger than tho English case I quoted just now. His Honor—l would much rather see tho

last paragraph of the affidavit, referring to the bona fidrs of the telegrams from the Treasury left out. If I grant the rule, it must be understood that 1 do not do so on that ground. Mr Joynt—l ask for the rule on very simple grounds. We say that on a certain day the amount of money was in the hands of tho Colonial Treasurer. His Honor— But your affidavit says that you ask for nn account of deductions. Mr Joynt—Naturally, men who did not know their legal position would say “Well, how do you make out. that the amount due on account of the Canterbury land fund is only so and so. If they had a right’prior to this, the right would exist afterwards. I submit that I have shown a very strong prima facie case for granting the rule nisi. It is very importaut that tho matter should be argued. It lias been the practice to grant a mandamus at once, but I think it would be more convenient in this case to take a rule nisi. His Honor—l have rend tho affidavits before mo very carefully, and considered the matter at some length. I think on the whole that I will grant tho rule, though I have considerable doubts on one or two points. First as to tho sufficiency of evidence of the amount for which the Colonial Treasurer is responeiblo. Secondly, as to whether it was money actually existing in tlie Treasury. I think you have shown a statutory duty in tho Treasurer to pay over these amounts, I will therefore grant a rule nisi. When will you make it returnable ? Mr Jovnt—l think a month, your Honor. His Honor—l think it would be better to have it returnable in a fortnight, because I should then have tho assistance of my brother Williams in deciding this very important case. Order—Rule nisi granted, returnable on the 13th August.