SUPREME COURT.

Tuapeka Times, Volume V, Issue 243, 26 September 1872, Page 5

SUPREME COURT.

IN BANCO.

(Before Mr Justice Chapman.) September 18.

Maclean akd another v. Mac vndrew and others. — This was a motion to dissolve an injunction granted exparte. Theoßs made by the plaintiffs in their declaration is this : In the first three paragraphs they make title to the station or run No. 169, under a lease from the Crown granted uudcr the provi- | sions of the Waste Lands Act, 18(56. The I lease bears date July 5, 1867, and is for a term of fifteen years and five months, to be computed from July 4in the same year. Before the making of this lease — viz., on January 29, 1867, the then Superintendent (Thomas Dick, Esq.) issued a proclamation (under authority delegated to him by the Governor), proclaiming the lands afterwards comprised in the said lease as a goldfield, and this proclamation has never been revoked. It is then averred that "no goldfield or gold-mine has ever been discovered or proclaimed upon the said pastoral run." On the 2Sth December, 1870, the then Superintendent, James Macandrew, Esq. (one of the defendants), issued a proclamation purporting to cancel the lease of the plaintiffs over 17,360 acres of the run. 1 his proclamation is stated to have been made under the lßbfc section of the Goldßelds Act, 1386On the same day another proclamation was issued by James Macandrew, Esq. , setting apart Crown lands on the Otago goldlields for the purpose of granting agricultural leases, the land so set apart being the 17 360 acres comprised in the former proclamations. It is averred that, under the last-named proclamation the defendants are attempting to dispose of, for the purpose of agricultural leases, the soid 17,360 acres or a large portiod thereof, and are thereby attempting to defeat the provisions of the 33rd section of the Goldfields Act, whereby no more than 5,000 acres can be selected from any run within any proclaimed goldfied. Oa the same day a third proclamation (or order in Council as it is called) was issued, proclaiming and declaring " all the Crown lands specified in the schedule (comprising in fact the same 17,360 ocres) open for sale in sections of the size and form in which Buch ands have already been surveyed, and as the same are laid down and delineated on the maps in the office of the Chief Surveyor of the Province of Otago." It is then averred that the defendants, under the last mentioned proclamation, are attempting to dispose of absolutely some portions of the 17,360 acres, the precise extent of which plaintiffs are unable to state, and that the defendants have publicly called for applications for the same. The grounds upon which the defendants seek to have the in- • junction removed are— l. That the plaintiffs ' have shown no equity in their declaration to ' entitle them' to an injunction. 2. That the acts complained of are "acts of State and Government," and that the Supreme Court has no jurisdiction , to restrain .such acts; 3. Similar ground, in other words, i c., that the proclamations were issued by the defendants, or some- of them, on behalf of the General Government, under powers lawfully delegated to them. 4, 5. and 6. That no cause of action is shown against the Superintendent or the Commissioners of Waste Lands, or against the members of the Executive Council of the Province, as members of the Waste Lands Board of Otago. 7 and 8. That no wrongful act is shown to haTS been done by the defendants in either of the above capacities. 9. That the plaintiffs' lease is not valid as against the Queen. 10. That the said lease has been lawfully cancelled. 11. That the declaration does not show that the defendants are attempting to dispose of more than 5000 acres of land (meaning the land claimed under the lease) for the purpose of agricultural leases, or that they are attempting to defeat the 33rd section of the Goldfields Act. 12. That the defendants, Gillies, Duncan, and Hughes are no longer members of the Executive Council, ■and have no control over the proceedings of the same. 13. That the plaintiffs have suppressed and misrepresented material facts. His Honor, in delivering judgment, said the question submitted to the Court was whether the defendants, acting entirely under legislative authority, had gone beyond the powers prescribed by the Goldlields Act of 1866. It was alleged that they had generally exceeded their_powerß, to the piaiutiffs' prejudice, and that constituted the equity on which the latter took their stand. But apart from that question, which went to the whole merits, other questions were raised, and these required to be considered first. For the plaintiffs, it was argued that the motion for dissolution of the injunction came too late. But it seemed, to him, from the simple question raised upon the merits, that the decision on the motion would decide, or at least it might be hoped to decide, the case — subject, of 1 course, to the opinion of the higher Court. ; It was, in fact, substantially equivalent to a demurrer for want of equity,' and therefore he did not think himself precluded from entertaining the motion, or compelled to stop the case. Proceeding to deal with' the points raised, his Honor went on to say that he considered those relating to irregularity of date of lease, and the absence of an averment that the lease was issued in- consideration of the surrender of the pre-existing lease untenable, and that the voidableness of tbe lease was only determinable by scire facias. . The next point, that the actsof thedefendants were "acts of state," and therefore not cognisable by the Court, must' be taken that thedefendants for -the present purpose were exercising the office of Governor, and were protected from immunity in a manner similar to him. The point seemed to him (the learned Judge) to be divisable into two questiuns— (l) whether the Governor's immunity extends to the defendants, and (2) whether the . proclamations ' under the Goldfields Act are such "acts of state" as to be removed from question in a superior Court. This briefly stated embraced all the grounds comprised in the motion from the second to the eighth inclusive. _ Granting the Governor's personal immunity, which is founded en principles of public policy, not only from actions, but from such writs as mandamus, prohibition, quo warrarUo, and injunction,

what was there in any of the cited cases to -show that a like immunity was extended to Subordinate officers, "if they overstepped the powers and authority delegated to them? All analogy was indeed the other way. The court had, it seemed to him, jurisdiction to examine into the acts compl lined of, by which it was alleged the defendants had exceeded the powers conferred upon the Governor, and invade the plaintiffs' rights. If the Court had no such jurisdiction, tho subject would be left without remedy, contrary to one of the most salutary maxim 3or principles of the law. Another objection, that the Waste Land Board was a court, aud as such, its members were not liable to action, was met by a two-fold answer — (1.) The Board had administrative as well as judicial functions ; and here they wera not complained of for any judicial proc eding ; (2. ) under our proceedings the word action had not the same limited meaning as in rnglaad. As a court, even though not liable gewera'ly to an action in the English sense, they were liable to other restraining proceedings, and it" they, acting administratively, were instrumental into carrying into execution an illegal proclamation, which was the question to bs examined, hethought they might be restrained by injunction. If not. he ngaiu asked, where was the remedy ? Coming to the merits, his Honor said he had no deubt the defendants had gone beyond the powers conferred upon them* by statute, and that the injunction ought to be sustained. All authority should be strictly pursued,. a fortiori where powers were given by statute they could not lawfully be overstepped. This was the case where no conflicting interests were affected ; it was more especially the case where any departure from the statute invaded private rights The 33rd section of tbe Goldfields Act [here read] under which the two last proclamations purported to have been issued was a wise and salutary provision. it made the requirements of agriculture parameunt to pastoral occupation, as they ought to be; and at the same time gavu protection and time to the lcs-see by placing a limit upon the quantity of land which could be t iken at one t me. The language of the section was clear and unambiguous. To the extent named by the statute, a proclamation would be irrcsistabie, and when half the quantity shall have been selected and actually occupied, a second proclamation touching the same selection would be equally unimpeachable. But here the p: oclamations at once set apart and laid open for selection 17,360 acres, and that was beyond the authority given by the 33rd section But it had been said that it had not been shown that the defendants were attempting to dispose of more than 5 000 sens for the purpose of agricultural leases, or that they are attempting to defeat the 33rd section of the Uol Ifields Act. What they intended to dispose of was of no consequence. Their excess of authority was in selecting and setting apart a quantity of land more than the Act allowed, t 'onsidering, as he did, that the language of the section wai so e'ear as to obviate the possibi ity of two interpretations, it seemed strange that the defendants should have misinterpreted its provisions. They probably thought that they could fall back on the 16th section, made for another purpose, and then having got rid of the lease so far as it related to 17,360 acres, proclaim the whole open for selection under section 33. He was of opinion that this could not legally be done. If gold had been discovered on the land after the act to a sufficient extent to be called a "god mine" or "goldtield," then, no doubt, the Governor had a very large discretion to cancel the whole or any part of the lease; but the Legislatu c could not have contemplated that this discretion would be exercised beyond the requirements of the rase, that was for mining purposes ; and, when the three pi oclamations we c read together, it became clear that the power under section 16 had been resorted to not to open the land for mining purposes, but to enable the defendants to take advantage of the powers conferred by section 16 in order to enable them to deal with more land than section 33 allowed ; and this was rendered more obvious from the fact that the three proclamations bore date on the name day. If the first were sustainable on the ground that a "god mine" or a" "goldfield" had been discovered over the whole or a considerable part of the 17,360 acres, so as to reuder it expedient, under the wise po'icy of the Act, to open the same to the operations of tbe miner, then what became of that object when the whole of the fame land was thrown open for selection for agricultural purposes ? The two last proclamations acted in defeasance of the first, and against the spirit of the 16th section ; and the first seemed to have no other use than to enable the defendants to escape from the trammels imposed by the 33rd section. Injunction sustained, and motion dismissed with costs. • Mr Barton obtained leave to appeal. September 19. BKGINA V. HENRY AND OTHERS. Argument of rule nisi to quash conviction. Mr Macassey moved the rule absolute, and Mr B. C. Haggitt, with whom was Mr Shapter, showed cause. In April last, J. T. Henry, coach proprietor, was fined LlO and costs by Mr Beetham, E.M., Queenstown, for ringing the fire-bell there contrary to a municipal bye law. The rule was made absolute, by consent, without costs. REGINA V. FISH AND ANOTHER. Argument of rule nisi to quash conviction. Mr Macassey in support ; Air Smith showed cause The rule called upon the Mayor of Dunedin, the convicting magistrate, and Inspector Is'imon, the informant, to show cause why the c -nviction of ft. B. Martin for an alleged breach of the Kerosene and Parafine Oik Ordinance, 1862, should not be quashed, , on the grounds that sections 1, 2, and 3 of the Ordinance are ultra vires ; that the warehouse and yard mentioned in the conviction were separate places within the meaning of the Ordinance ; that tho conviction did not allege as it should that the offence was committed knowingly ; that the Ordinance was impliedly repealed by the Dangerous Goods Act; 'lß69. His Honor said the conviction was bad on the first and second grounds. The rule was made absolute, by consent, costs not being allowed against the Magistrate, and on the understanding that no action should be brought against either the Mayor or the informant. REGINA V. SINCLAIR. This was an argument on demurrer to an action by writ of scire facias to repeal a Crown grant. Mr Barton and Mr Shapter in support ; Mr Macassey, instructed by Mr Turton, contra. On June 27, 1854. Mr F. S. Pillans, by virtue of Ordinance, Bess. 10, New Ulster, and sess. 10, No. 2, New Munster, and the regulations then in force, by which the Governor issued depasturing licenses .outside hundreds, became entitled to a license for Bun 3d, Molyneux. That license was for a term of 14 years from its .date, -and could be .cancelled "as, by law and as by such regulations prescribed." Pillans enjoyed possession under the license until February 27, 1867, when he elected, under section 69 of the Otago Waste Lands Act, 1866, to surrender his license, and. receive in lieu of it a lease for the unexpiredterm, with ten years added. (A. question turns upon the sufficiency of the description of the country as against the Crown.) During the continuance of the demise a portion of the> run was proclaimed as the Stuart Hundred, the proclamation being made by the Governor under (be Definition of Pis*

tricts Act, 1858 C Since that proclamation, which, was dated November 6, JB7O, the Waste liands B >»rd Lave had the land surveyed and divided into districts, blocks, and sections, and thrown open for sale under'the Waste Land Act upon the supposed extinction or limitation of Mr Pillana's rights. The date of the proclamation was merely set out in the writ ; the date of tho sale and division was not given ; and one of the questions the Court is asked to consider is, wh-.ther the sale having taken place so far back, the parties who had been lying on their o »ib from 1868 to 1872 could n>w object to it or to anything happening from it. Sections 14 and 15, block 11, VVaitahuna, 216 acres (part of the run) were purchased in September, 1870, by Mr Sinclair ; and the validity of that sale is callod into question The demurrer avers that there is no sugge ton or good reason for the cauc2llati >n ot the grant, and that the writ anl declaration arc uncertain in form and insufficient. The Court is asked to decide in tbe first place whclh r the proclamation of Nov. 6, ISOS, is void, bec.iuse it does not namo a dite for the cessation of the pastoral lease ; an I, further, assuming the proclamation to be valid for the purpose of declaring the Hundred, wh thcr in consequence of there being no date named for the cessation of this sp cific lease, the pastoral tenant is still entitled to his lease. The opposing party to the demurrer admits the sufficiency of the proclamation so far as it defines districts, but contends it is not valid w ith section 82 of the Waste Lands Act, because it did not put au end to the interest of the pastoral tenant in the manner prescribed by that Act. The party demurring, on the' other hand, says, the effect of that contention if upheld by the Court, would be tha« the tenant's lease which the Legislature intended should be defeasable, is converted into an utterly indefeasable one, until the termination of the lease, because a good proclamation being in force no other could be issue-l, which would be, it is alleged, tearing up the Waste Lands Act by tho roots. Judgment reserved.