THE EDUCATION RATE

Hawke's Bay Times, Volume 13, Issue 667, 25 March 1869, Page 3

THE EDUCATION RATE

tjj the Resident Magistrate's Court, on Tuesday last, 23 d inst., before J. Curling, £ sC , H.M., and H. S. Tiffen, Esq, J.P., die Education Rate collector, Mr Pierce, j n the name of the Superintendent, sued jf r T. Edwards for the sum of, £l, under the Education Rate. Mr Colenso proposed, that as he was also sued for the lame amount, his claim should be taken g r9 t, The Bench had no objection, and accordingly Mr Colenso took the place of Mr Edwards, Mr Colenso objeoted to a member of the Provincial Council being on the Bench, but the objection was over-ruled by the Resident Magistrate. Mr Cuff, who appeared on behalf of the Superintendent, in opening the case handed in the Act of the the Provincial Council under which the amount was claimed, ffhioh levied a yearly rate of £1 on every house in the Province. The collector, Mr Pierce, would prove that Mr Colenso occupied the house in the town of jf a pier, that application had been made to him for the rate, which he had refused to _ a y # He also stated Mr Pierce was not [be collector first appointed under the £ c t ; that Mr Scully originally held the office, but had resigned. He then called, i Mr Thomas A. Pierce, who deposed that lie held the office of Education Rate collector. He knew the defendant, and ap- i plied at his premises ou the 11th February for the payment of the rate. This was refused, and he accordingly left a written ■ demand, in accordance with the Act, On ' the 7th March he called again, but Mr I Colenso still refused to pay. Witness put | 6 file of ttie Herald into Court, and showed : that notice had been twice given by advertisement, as required by the Act, i Mr Colenso then asked witness: Did 'tou leave a similar demand with any Sother person previous to leaving it with be?

Mr Cuff objected to the question, but it was allowed by the Bench, and the witness was understood to answer iu the affirmative. Mr Colenso : Have you called at all the occupied houses in the Province ? Sir Cuff objected to this question also, and hia objection was allowed by the Bench, the Resident Magistrate observing that he did not wish to place any obstruction in tha way of the defendant, but must request him to confine his questions to his owii case.

Mr Colenso said that his object was to ghow that the the inspector had not yet called at all the occupied houses in the Province, and that therefore there had been undue haste in the prosecution, seeing it was for arrears. Ho then asked : J)id you select my case in preference to ethers ?

Mr J. IST. Wilson: I will answer that question. I did. Mr Colenso said he had not asked the Provincial Solicitor. If that gentleman was 3Worn there were certain questions he could ask him. His question was addressed to the Rate Collector. Neither the ProTiucial Solicitor nor the Rate Collector bad a right to select those who were to be prosecuted; it rested solely with his Honor the Superintendent. His reasons for opposing the rate were in the first place that he did not consider the amount claimed due, and second, that he believed the whole Act to be illegal. As the objection he would make would be chiefly of a legal character, he hoped he would have every allowance granted him. Mr Cuff said that as far as he was concerned Mr Colenso should have entirely his own way. Mr Coienso said that if he were addressing a jury he would ask them to divest their miuds of any impressions derived from what they had read on the subject. The mendacious sea-green Herald had stated again and again that the act was a mere temporary measure, when it contained special provisions to carry on its operations from year to year. When an act was intended as a temporary measure it invariably contained a clause limiting its operation to the time for which it was intended. Such was the case with certain private acts passed last session of the General Assembly, and with our own Provincial Audit Act, which was intended to last four years. The Act under which he was summoned contained provisions for the yearly levying oi Rates, and for the appointment in" each year of a collector, and jet wj were told it was temporary. If that had been the case he should not have been hero now, for he believed he could bear the shoe to pinch for a little time as well as anybody. He found on reference to the Gazette that this tax was called both a me and rates. The notice spoke of a rate of £l, and stated that Mr Pierce had been appointed to collect the rates. After being mentioned three times in the plural it was said that the rate was payable on the 20th day of September. He could show the reason for the use of both these terms. It was also stated that part of the Inspector's duty might be to prosecute those who had not paid arrears; it was not imperative. He would examine the meaning of the term. Arrears referred to Bometliing behind, unpaid,—something incurred in time past, something done, — they could not by any possibility refer to the future which was not yet due.« He would now speak of the demand left with him by the Collector; the act provided that this form should be in writing, whereas the one the Collector left with him was printed. This was a violation of the act. He would call attention to the Rules of the Housa of Representatives and Legislative Council on the subject, which he Would quote: "Every Petition is-to be iTCittoßjiW printed or lithographed peti-

tion will be received." The same was one of the iiiies of the Provincial Council of this Provir ce.

Mr Cuff said that a printed document with a written signature was legally a written paper. Mr Colenso said that this was not the case when it was specially provided that a document should be in writing. These might seem small matters, but as he was defending his own case it was his right to make the best of it. He did not see any just reason why the whole years rate should be collected at one time; it was supposed to be to pay teachers, and if collected quarterly would be obtained just at the time when it waß required for their salaries. To collect it now was to get it when it was not required and not due. He had another question to HBk the Collector : Did I not offer you 6/8 in legal coin, the amount of arrears for four months, which you rejected ? Mr Pierce: Yes.

Mr Colenso would ask the Deputy Provincial Solicitor if in the case of a lease, or house let by the year, rent for a future period, and not yet due could be charged as arrears.

Mr Cuff: If the rent was payable in advance, dt-cidedlj so. Mr Colenso would now refer to precedents. Fortunately this Province had not yet much experience in rates; but the Wellington Land Regulations, in force in this Province, showed when an annual rate became due, and how it should be collected. The first quotation he was about to make would also show the meaning of the word "rates":—"Rent for a run according to the following rates—First four years, i 1 per acre j next five years, £d per acre ; remaining five years, Id per acre." With regard to the time of payment —when they were due—he would quote as follows from the same:—"All rates paid annually in the month of January for each year or halfyear, of occupation, to 31st December preceding." This not only provided that the annual rate could not be collected till the end of the year or six months, but allowed au extra month. Again, by the same re gulations, proceedings may be taken for "any arrears remaining unsettled for three months." Inasmuch as he had, when the rate was applied for, tendered legal coin to the amount of all arrears, he contended that he was most illegally and hastily pro secuted in this matter. He now came to another point. If the act purposed to call on us to pay a yearly rate before tha year was up it was clearly repugnant to the constitution Act. With regard to the construction attempted to be put upon the Education Rates Act to make the rate payable before it was due, he would quote from the Constitution Act, §lB: —"Super intendents and Provincial Councils in mak ing laws must be careful that the saine bo not repugnant to the law of England.' §l9, clause 2 : "It shall not be lawful for the Superintendent and Provincial Council to make or ordain anything for the altering the practice of any court." The ssme was repeated in the " Constitution Act Amend rnent Act" of 1857. Again, in the " Government of Provinces Act," 1862 ; —" It shall not be lawful for any such Council to pass, and for the Superintendent or Governor to assent to any law which shall be repugnant to the law of England." As an instance of the unfairness of putting such a construction on this act, as that of collecting such a rate in advance, ha might mention the case of a person in Napier who occupied three different shops in the town in as many months, two of them being unoccupied when he went'into them Had the Inspector called upon this man before his first removal, and he had been goose enough to pay the pound, he might since have had to pay two others—or £3 in three or four months. For the act stated:—"The rate shall be payable on every house ; —and, the actual occupier for the time being shall be liable" :—of course, if the whole rate, was legally payable at ones on demand—the unfortunate occu pier of 3 different houses in the year would have to pay £3—or 3 years rates—which was both illegal and absurd. It was strange that an act which it had taken three lawyers to frame, should be so bad as to be easily torn to pieces by a layman ; but it might be the bill had been framed in this ambiguous manner in order that it might be passed by the Attorney-General, and be made susceptible of a different reading from from that which he put upon it. He then spoke of the Auckland poll tax, and read a portion of a speech by Mr Gillies, and the judgment of Air Beckham, the Resident Magistrate, in which the law was laid down that no rate could be collected until it was due, or until the time for which it is levied is passed. The Auckland act was very similar to ours, except that it was a tax on individuals instead of buildings, and, indeed, was rather more strict, as instead of waiting for a proclamation in the Gazette to cause it to come in force, it was to be in force immediately that it was assented to. That tax could not be collected till the expiration of the year, though it specially provided otherwise j and no rate in advance could legally be so collected. There was, however, one way of confirming this act, through the common sense use of the terms " rates" and " arrears," which, however, was evidently not the one taken by the collector, namely, to understand the term "arrears" in its legitimate sense. The expression "The rate shall become payable" did not necessarily mean the whole leased at an annual rent, and if it was of the rate j as, if a house, or estate was stipulated that the rent should become payable in three months, no one would understand it to mean the whole year's rent. If construed in this way, this prosecution was illegal, as he had tendered arrears ', and any other way, as he had before said, it was repugnant to the law of E»g:

land. Which horn of the dilemma would Mr Deputy-Provincial Solicitor ohoose to be impaled upon.

Mr Cuff would not allow that the act now in force was repugnant to the law of England. I

Mr Colenso would now refer to a decision by Mr Justice Johnston with regard to a similar Act, in the case of Sinclair v. Bragge. This Blenheim prosecution was also originally for rates, and it was urged that the Blenheim Improvement Act was in violation of the 19th section of the Constitution Act; bat the District Judge gave, judgment on behalf of the Marlborough Government on which Mr Sinclair appealed, one of the questions being :—■" Is the Blenheim Improvement Act repugnant to the Constitution Act?" and the Judge, on appeal reversed the decision of the District Court, with costs. His argument of defence was therefore very simple. If the Act under which he was summoned enacted that a full yearly rate should be paid in advance, it was repugnant to the law of England ; and if it only referred to arrears ho had made a legal tender of the whole amount due; and, besides, the summons was for £l, or the whole year's rate. This argument, he hoped would receive due attention, as it was based on the law as laid down by Mr Beckham in Auckland, and his Honor Mr Justice Johnson in the Blenheim case.

The Bench, after some consideration, deferred their decision till next day.

Yesterday, the Court delivered judgment as follows:—" As to the argument by Mr Colenso, founded upon the circumstance of the demand for the rate not having been wholly in handwriting, this appears too frivolous to be taken at all into consideration ; and there were one or two other points made use of by him that appears to the Court of the same trivial description. But in regard to the arguments he us'don the subject of an annual or a yearly rate or rent, this was of importance—the Court being of opinion that such an annual rate would not be due till the expiraton of the year, or in portions till the end of a quarter or a half year, unless some intermediate lime had been specially appointed for its payment or collection; and such a tim. has been distinctly appointed in this case; and therefore the Court is of opinion that it is due at that time and must be paid. Therefore judgment is given for plaintiff, with costs.

Mr Colenso remarked that if the act had made it imperative on the Superintendent to bring the rate into force, he would have paid it on hearing the decision of the Court; but as it was permissive only, he should still decline to do so; and, an execution being threatened, gave notice of his intention to appeal to the Supreme Court, This notice stays execution for 14 days, during which time proceedings in the appeal can be commenced, when of course no further action can bo taken until the decision of that Court be given.