TRAMS AND FERRY

Sun (Auckland), Volume I, Issue 1, 23 March 1927, Page 1

TRAMS AND FERRY

Deal Outside Statute . RATE-PAYERS GAIN INJUNCTION Either .a new agreement must be drawn up in conformity with. ' \ the judgment, or statutory authority must be obtained before the Takapuna Borough Council can purchase the tramway and ferryservice.

Judgment in that sense was delivered by Mr. Justice McGregor in the Supreme Court this morning on the action for injunction brought by the ratepayers of Takapuna against the Borough Council. The injunction was brought to restrain the council from completing the purchase of a tramv ;■ undertaking and a ferry servi. from the Takapuna Tramways and rry Company, Ltd. The terms .ind conditions of the proposed purchase were set out in two agreements dated September 29, 1926. It was the endeavour of the plaintiffs to prevent the council from carrying into effect the purchase of the ferry service, on the ground that it was ultra vires, as not being within the terms of the empowering section of the Municipal Corporations Act, 1920. In making the provisional purchase -'-o defendants claimed that they had d within the statutory powers I rred on them by section 214. On th • .her hand, the plaintiffs asserted that the defendants had exceeded their statutory powers in respect of their purchase of the ferry service. It was admitted that the two agreements were interdependent, and must stand or fall together. CANNOT BE SUPPORTED “It is common ground,” said his Honor, “that if the purchase of the ferry service be held to be ultra vires, the tramway purchase cannot itself be supported. In the present case, the Takapuna Borough Council is a purely statutory corporation, and therefore has power to do only that which it is authorised to do by statute, and in particular by section 214 of the Municipal Corporations Act. It seems to me that courts have always been careful to see that municipal bodies should not be allowed to expend the money of their ratepayers,

unless such expenditure can be brought within the ambit .of their statutory powers and duties.” His Honor said the first and £ cardinal point to be determined was whether the members of the Takapuna Borough Council, in making, the. pur- - -ss, had confined themselves ; icily within the limits of -their jurisdiction, and bad procedeed according to the Legislature. It was cone tended that the transaction involved not only the purcha-" " the steamers and their accessories, but also the purchase of the goodwill of the company’s ferry business. », i

COUNCIL’S JURISDICTION *‘o -o comprehensive agreements,” continued his Honor, “must speak for themselves.” If they take effect according to their ex facie terms, it is obvious, in n • opinion, that the transaction, taken as a whole, gpes .far beyond the limited powjjr of purchase conferred by section 2T4. If, on the other hand, their apparent effect is to be whittled away by ex post facto documents, such as the subsequent agreement of March 14, 1927, then the borough ratepayers were at the outset misled Into voting at the poll in favour of the original purchase, as set out in the two main agreement’s. In the result, I am satisfied, for the foregoing reasons, that the two agreements of September 29, 1926, were and are ultra vires of the Municipal Corporations Act, and that the defendants accordingly must be restrained by the order of this court from carrying them into effect as proposed. “Judgment will be for an Injunction against the defendants, with costs 45 guineas, and disbursements, to be paid by the defendants to the plain fifi”' Liberty will be reserved to either party to apply as to the precise form of the order for injunction, or otherwise.”