Road Board v. Counties.

Thames Star, Volume XII, Issue 3930, 3 August 1881, Page 2

Road Board v. Counties.

Out patients, 31.—Thos. Aitken, Dispenser-

In our last issue we gave an extract from the judgment given by the Court of Appeal in the case of Hendry v. Hutt County Council. We now re-print it in full: — HENDET V. HUTT COUNTY COUNCIL. The Court having at some length determined that it had jurisdiction to deal with the case, gave the following judgment:—" The next and most important question in tile'case is as to the legality of the order of 23rd March, 1877. The order was made under the powers contained in the 88th section of the Public Works Act, 1876, which enacts that the County Council may make county roads throughout the county, except within the limits of a borough, and may. by an order publicly gazetted and notified from time j to time, declare any district road within the county to be a county road, and may, with the consent of the Road Board, in a similar manner, revoke such order, and on such revocation the road to which it relates shall again become a district road. Now, looking at the phraseo'ogy of this section, it does seem as if the power ol declaring district roads to be county roads was intended to be exercised over individual roads, and not over roads of a district in bulk. The power of declaring any road is to exercised from time to time, which could not be if all were to be declared at once. And the revocation of such order is to ' affect the road to which it relates,' which ' shall again become a district road.' Now, although the Interpretation Act enables the sing'ilar to be construed in the plural, such construction is only admissible where the context requires or manifestly points to it, of which there is no indication in the present instance, and when we look at the provisions of the Act generally, the intention of this provision becomes still more apparent. By section 81 of the Act, " All roads, except . . . shall be under the control of ... the Road Board of the district in which such roads are . . . shall be called district roads." County roads are one of the exceptions, but no precise definition is given of what shall constitute a county road. The declaration of the Council seems to be the only test. But it appears to be contemplated that there shall be within every road district what are called district roads, apart from what are called County roads The very names given them and the provisions of sections of the Act, appear to indicate that all roads made by a Highway Board shall in the first instance be district roads—that is, roads specially adapted for the use of, and specially used by, the inhabitants of the district. On the other hand, the term county roads appears to designate a road the necessity for and of which is not confined to any particular section thereof. The power given to a Council to take over from time to time any particular roads is in accordance with this view, for as settlement progresses and population increases, roads, originally only required for the use of a district, may become necessary for the common benefit of the whole county. But circumstances can scarcely be ' imagined it) which every road in a district | j should at once be required as a county I I road, No doubt the discretion of determining when a road is required as a county road is conferred on the Council, and this Court would not interfere with any reasonable exercise of that discretion, but this Court has a right to interfere if no discretion is exercised, or if the exercise of that discretion appears to be only the cloak for an arbitrary proceeding such as the Legislature does not seem to have contemplated. In our opinion, the order of March, 1877, shows on the face of it that no discretion was exercised by the Council iv declaring all the roads of the district county roads, and this is further made plain by the clause that that order covers all future roads in respect of which no discretion could possibly have been exercised in anticipation of their formation. In our opinion therefore, the order of 23rd March, 187?, is bad, as being contrary to the manifest spirit and

intention, as well as the letter of the Act, and that even if it were good to the then existing roads, it could not possibly affect subsequently made roads. Assuming, then, that the district roads at the date of that order are no legally absorbed as oounty roads, or even assuming that only subsequently made roads remain district roads, in either case the question arises— which of these bodies, the County Council or the Highway Board, is the proper body to prepare the valuation roll on which a rate by the Conncil should be based. The answer to the question depends on the construction of Sub. 25 of the Sating Act, 1856, which provides that 'Where two or more bodies are empowered to make and levy rates in the same district, the term local body in so much of this Act as related to the |making of the valuation roll, shall mean the Municipal Council, Eoad Board, or other body having the control and management of the roads of the district, and the rates authorised to be made and levied thereon by any other body shall be made upon the valuation rolls made and provided by this Act.' The plain meaning of this section evidently is, that in respect of each district, whether Highway district, County, or Municipality, there, shall be but one valuation roll for thcpsi^iOfe of rating whatever local body o? bfSlfs may be entitled to levy rates thei-eon, la the present case ' two bodies'—the County Council and the Highway Board are empowered to make and levy rates in the same district. What district? for the word district may mean either county or highway district. It was clear, notwithstanding the ingenious contention of Mr Travers, that it must in this case mean the highway district, in which alone the two bodies have power of rating. The Board has no power to rate anywhere but within the road district. Wo doubt the road district is within the county, but it seems to us that the words 'in the same district' I must be read, as if they were.' over the same district,' otherwise the result would follow that the manifest intention of the section must be disregarded, and there might be two separate valuation rolls for the same road district. But Section 4 and subsequent sections of the Bating Act provide that 'every local body* sliall appoint valuers, <fee, and both Council and Eoad Boards are by the interpretation clause of the Act included in the term 'local body.' The 65th section, however, limits this interpretation of the term ' local body,' in that part of the Act, to the body having the control and management of the roads in the district. It was contended that the Council has the control of the County roads within the road district, and are therefore entitled to make the valuation. But it appears to us clear that ' the roads of the district' ('district' meaning, as we have already said, the 'Highway District') is equivalent in this case to the district roads over which the Highway Boards have the exclusive control by see* tion 81 of the Public Works Act. It follows that the Highway Board and not the County Council has the right to make the valuation roll for all rating purposes, and this seems only reasonable, inasmuch as local valuers and assessment courts would have a better knowledge of the values in their own district, and could accomplish the work easier and cheaper j than valuers appointed for the more extensive County. The next question is, whether the admitted non-compliance of the County Council with the provisions of section 107 of the Counties Act i is of itself fatal to the validity of the rate imposed by the Council? It will be observed that by section 107 the perform* ance of certain other acts by the Council is made a 'condition precedent' to the making of any rate by it. The performance of these acts is made imperative— they ' shall' be done. And the acts so imperatively ordered to be performed as a condition precedent to the making of • rate are not of a mere technical nature, such as might be neglected without any real injustice being done to the rate* payers. Estimates of. the works to be done, their cost, the rateable value of the property on the valuation roll, and the rate necessary to meet that cost,' are to be made and publicly notified for the information of the ratepayers for fourteen days before making the proposed rate, thus enabling ratepayers to bring pressure to bear on their representatives iv the Council if they disapprove of the works or the expenditure upon them. This provision lays down the prudent system for these local bodies that they shall first determine what works are necessary, and what they will cost, and then raise so much money as necessary, and no more. There is in this a wise principle, not a mere technical detail, and this Court ought to recognise the importance of this provision by looking upon it as mandatory, and not merely directory. The only other question which requires to be considered is the defendant's contention, under Section 51 of the Bating Act, that although the rate be invalid as a whole, it may nevertheless, under that section, be recoverable, and that therefore this Court will not restrain its recovery. It appears to us that the j true meaning of that section is, that where an individual ratepayer is being sued for payment of a rate apparently duly levied, he shall not be allowed to plead as a defence the invalidity of the rate as a whole. This provision f&etns to have been adopted in some Engfislt Acts where the ratepayers have already had an opportunity of challenging by appeal the validity of the rate as a whole. Under our Acts now under consideration, there is no such opportunity given to ratepayers of testing the validity of a rate, and it would surely be such a monstrous state of things as never could hare been contemplated by the Legislature that however local bodies exceeded their power, or failed to perform their duties in regard to rates, there could be no remedy against a rate imposed by them. Although, therefore, the section prevent! the invalidity of a rate as a whole being being set up as a defence in proceedings for its recovery, the provisions of the section do not prevent proceedings such, as the present being taken by any rate* payer to test the validity of the rate. In our opinion, therefore, the plaintiff has disclosed a good cause of action, and the demurrer thereto ought to be over* ruled, with costs."

The Scotch are proverbially a thrifty race. A short time ago the traveller of a well-known wholesale house, m London, called on a Glasgow trader for the usual annual account. With much apology this gentleman professed his inability to pay, but offered at three months in place ol the ready cash. After some demur this was accepted and the necessary document drawn up. Said the debtor, "JSoo my ladie, thas't finished. I'll discount it for y* it ye weel" and the bill was discounted.