SUPREME COURT, HOKITIKA.

Grey River Argus, Volume XIV, Issue 1770, 8 April 1874, Page 2

SUPREME COURT, HOKITIKA.

Saturday, April 4. [from the west coast times.] His Honor Judge Richmond delivered written judgment in the undermentioned cases, as follow^ : — ROBERTS, APPELLANT V. THE WASTE LANDS BOARD FOR THE COUNTY OF WESTLAND, RESPONDENTS. In this case, the appellant has duly lodged an application to purchase, at the upset price, certain sections in the town of Greymouth, which had been previously put up for sale by auction, and had remained unsold. The application was made under the proviso to section 36 of the Westland Waste Lands Act, 1870, which is as follows: "Provided that if any town sections put up within a defined block, as specified in this section, be not sold, they may be purchased at any subsequent sitting of the Board, at the tip3et price." This enactment appears to me to amount to a statutory offer of all sections within the proviso to the first applicant. The first applicant in my opinion, is absolutely entitled, under the clause, to become the purchaser, unless it can be shown that, by. some specific provision of the statutes regulating the disposal of Crown Lands in Westland , a power is vested in some per- , on or b ody of persons,, on the part of the Crown to retract the statutory offer after

its acceptance ; and unless it be further shown that such power has been effectually , exercised. The vested interest of the applicant can> only 'be defeated in virtue of some specific statutory provision ; for; independently of statute law, there exists no power in the colony which can properly interfere with the disposal of the Waste Lands of the Crown. A great number of enactments confer upon various public functionaries definite and limited powers in regard to the disposal of Crown lands. These powers like all statutory authorities, must be strictly pursued ; and outside, the limits thereof nothing can be legally' done. There is no person, or body of persons, who can assume to represent the Crown in its proprietorship to the Waste Lands of the colony, and to deal with the Crown property in the supposed Interest of the public, as may in each particular case apI pear expedient. This Court, therefore, must limit its inquiry to the question, whether under any statute affecting the Waste Lands within this district, there exists a power of retractation which was p-xercisable and has been exercised in. the present case. In favor of the existence of such a power, it may, in the first place, be argued that the Waste Lands Board of the County (now Province) of Westland, ha 3 a discretion to grantor refuse any application; By section 15 of the Act of 1870, and section 6 of the Amending Act of 1873, the Board is directed to " consider and determine" all applications. By section 13 of the original Act, the Board is empowered on applications /<«• land to hear evidence, if necessary. In section 36 and elsewhere, the "decisions" of the Board on applications are referred to. Such expressions seem to contemplate the exercise by the Board of something beyond a mere ministerial function, arid the duty of deciding on an application may be thought to involve a discretion to reject it. But I think that the use of such phraseology may be explained as having reference only to certain discretionary powers clearly vested in the Board by other sections of the Act ; as, for instance, the powers under section 48 of modifying the bouudaries, of rural land applied for. It seems also that the Board has a discretionary power in regard to applications for licenses .to cut timber or flax, under sections 67 and 68, and that it must certainly exercise a judicial discretion in regard to applications founded upon the alleged forfeiture of a pre-existing license, see section 74. Many other cases might probably be found in which the Board may have to exercise a quasi judicial power or discretion with respect to the grant or refusal of applications. In regard, however, to applications such as the present, there appears to be no room tor the exercise of any discretion, nor do the Acts express or suggest any rule, principle, or purpose, whicb should guide the Board in the exercise of so important a "power Therefore in my opinion the right given by the plain words of section 36 is not to be cut down by any inference derivable from such phraseology as I have cited. ; By section 32, a power is given to the Governor to withdraw lands from the boundaries of a town. But; as thi3 could only have been done upon the recommendation of the County Council, approved Uy the Waste Lauds Doard, it is plain that there has been no exercise of this power. But the power by the exercise of which, it would seem, the appellants inchoate right is supposed to have been defeated, is that of making reserves which is vested in the Governor by section. 22. This power certainly could not be exercised by the telegraphic message of the becretary of Crown Lands, received on the 15th of December last. The only question is, whether the Gazette notice of Bth January, 1874, was a valid exercise of this power. I have come to the conclusion that it was not. First, I think the power was not, under the circumstances, exercisable. The notice was too late, tinder the proviso to section 36 the applicant became purchaser of the sections applied for, subject of course to his paying for them in due time, and the power of reservation doesnot enable the Governor to defeat a previous sale. Secondly, the power was. not in any case well exercised. The reservation purports to be "For wharves and coal depots, and other purposes of the General Government." But the specified purposes belong to the class of local purposes, for which, under Bection 22, reserves can only be made upon the recommendation of the Board. There was no such recommendation ; and the act of re-, servation is therefore, as regards wharves and coal depots, invalid. Being on this ground partially invalid, in is I think, bad altogether j it being impossible to say what portion is reserved for local, and what for general purposes. I have not been referred to, nor have I myself been able to find, any other power or authority by virtue whereof the appellant's right, acquired by application, can be supposed to have been divested; and I am therefore of opinion that his right subsists, that the receiver of land revenue is bound to accept payment of his purchase money, and the Waste Lands Board thereupon to issue to him a license to occupy.