SUPREME COURT.

Tuapeka Times, Volume VII, Issue 391, 16 September 1874, Page 5

SUPREME COURT.

IN BANCO. Tuesday, September 8. (Before His Honor Justice Chapman.) MANDAMUS. , Mr Hagsitt moved for a rule nisi calling upon the Receiver of Land Revenue at Invercargill to show caute why a -writ: of manrtamux should not ksue to him commanding him to accept payment (f the purchasemoney for section 376, Hokonui district, and sections 72, 73, 74, in the Oreti Hundred, Southland, at LI per acre ; and upon receipt of said purchase-money and of the estimated eest of surveying the lands, to issue the usual certificate to the applicant, Mr Wm. Henderson Oalder, in due form of law, that all moneys due in respect thereof have been received by him in cash. In support of his motion. Mr Haggitt went on to say that the Receiver of La*d Revenue was an officer appointed by the Governor under the Land Revenue Appropriation Act, ISSB. The 3rd section of ttiat Aot was the oue .which authorised the appointment ; and the 4th section defined the du'ies of the Land Receiver The application now made arose out of oireumstances which had already been before the Court ; a rule nisi having been granted under exactly the same circumstances in the caao of Larnach v. Ellis. By the Southland v> asie Lanos Act, 1565, the price of such land was fixed at 20s per acre, a provision being contained in the Act that the Governor might at any time by order of the Council increase the price. Upon July 9, 1873, the Governor, acting upon the recommendation of the Superintendent and Provincial Council of Oiago, actually did raise the price of rural land in Southland to L 3 per acre. Mr Calder's application for the purchase of the land re erred to was made on the 4th July, 1873 There were two separate applications, hat both weie dated the 4th July. The Receiver of Land Revenue, however, refused to accept the purchase money, or to sign the necessary receipts, except at the rate of L 3 per acre. On the face of the applications ft appeared that one dated on the 6th July was granted by the Board, as the following note was written at the foot:— "Granted. J. H. Baker, Chairman. 9-7—73 " There was a note on the next one, signed in the same manner, stating that it was to be granted in three app'ications. It was quite evident that the applications were granted by the Board on the state of the law at the time they were made, and were so treated in the Waste Lands Office, because it would be seen that the receipts were filled iD for LI jaer acre, the price of rural land at the time jM* applications were made and •firanfcei -His contention on the part of Mr *alder was that the 26th section of the Southland Waste Lands Act, 1865. was a ■standing cr?kw<?n the part of the Ciowu to -dispose of i-ad to applicants at the price of *he lard for the tim* being. Rule granted. KEGINA V. RECEIVER Off fctVJD EEVENITE, SOUTHLAND. This was an application by llr William M'fherson, as agent for George Meredith JJell, for a writ fef mandamus to issue against Andrew Jamieson Ellis, the Receiver rf ILand Revenue, Southland. A rule nisi had ©reimusly been granted by the Court. Mr SJitzwaiiam Wentworth made a similar application, <ex parte. f&The cases w«re heard. Mr Macassey, with him Mr Haggitt, appeared to show sause for the respondent ; and Mr Smith, wfch few Mr Stout, for the Appellants. jvir iklacassey said that «*s fcbe rales^in pjjj, c&&& and WenwQffchV aaas were -affial'kr, they would be argaefe together. The rule granted oq the 13 th June, 187*, called upon the Receiver of Land itevenuc at InvercargUi to show cause why a writ of mandamus should not be directed to him commanding him to receive from George M. ' Bell payment at the i-afcs of 2t)s per acre f->r certain Crown lands whjich the said G. M. Bell applied for on the 7th July, js73, under the Southland Waste Lands Act, l§§s Farther, to Bhow why the said Receiver of Land Revenue should not deliver certificates in due form of law that ths said lands have been disposed of in conformity wfth the Act, and why the Receiver of Land Revenue ehoald not be commanded to have receipt made out in favor of G. M. Bell, for the pay. ment of lands by the latter, at the rate of 29s per *ere, applied for on the 9th July, 1873, and vbich laad3 were described in five applications annexed to the affidavit of Wm. A Therson. Wjn. M 'Pherson's affidavit was to the effect that oo Monday, the 7th July, 1873, as instructed by &. M BelJ, he made up and sent twenty-six applications for the land referred to, and also made m entry in the Waste Lands Board's apP^^u t>ook as follows :~"G. M. Bell, per W, M'Pfcerson. 7th July, 1873." On the 10* of July, G. M. Bell was declared the purchaser. Depauent obtained receipts from the Clerk to the«aid Board, dated 11th July, for payment of- the lauds so granted, at the rate of LI per acre. And also receipts tot the survey fees. Immediately on obtaining the receipts, deponent, *eoOi»pamed by Mr Jameß Harvey, solicitor, went fe» the effuse of the Receiver of- Laud Revenue id j InvercargilL, and tendered him the sum of ! L 10.654 10s 4d. being the- aggregate of the \ amounts expressed in the receipts, at the j same time tendering fcbe receipts and requesting him to sign the aame. The Receiver of Land Revenue refused to accept mvment for the said lands unless a* the rate of L 3 an *ere. On the 9th July, *BW, deponent signed the five applications, eopw"* < which "were annexed to his affidavit, aad sn*de another entry in the Waste Lands Board's applicatioa book. The said application waa granted on the ISfcb. of said month, but the clerk refused t© make out, the proper receipts at LI per acre. The ag<kyit ef James Harvey, counsel for FitwtJJpm ffTentworth, also called upon the Receiver » .Land Bovcnue to show cause why a writ of mandamus slieuld not issue, directed to and commanding him, as sueb. Receiver of Land Revenue, to receive from the said "FitzwflliMn Wentworth payment at the rate ef 3lte per acre for certain Crown lands, which be applied for and elected to purchase under the Southland Waste Lands Act" 1865. on the 2nd and 7th days of July 1573 John Holland Baker's affidavit showed that on the Bth, 9th, 10th, and 15th days of July he acted as Chairman <-,£the Board The application* «f Mr G. & Bell were granted on the 10th. July, as '"'•.vero also the three other applications referred to on th« 15tk July, 1573. Previous, to the granting of any of the said applications on the 9th July, deponent produced and read publicly in the hearing of all persons present at the meeting pt the Board, and, he verily believed, in the bearing of the said William M.') herson, a telegeam'frora hia Hpnor the Superintendent of the ProvmGe of Ota<»o to the Receiver of Land Revenae, announcing that by an order in Council the price of land had been raised to the sum of XS per acre. Noi withstanding the intima*i<fo, the said G. M. Bell, by his agent (Wm. M*Pherson), applied for the lands mentioned ia'hia several applications, which were grancsd. Mr Macassey stated the case at cons derable length, aud submitted that the rule must be discharged, citing a number «f cases in support ef his view. He would refer the attention of the Court to th« Waste Lands Act, 1868. Section 28 fixed the price of land at 20s per acre, leaving it optional far the Governor in CoancU ttWWWWhpWBMjwi'WfW TJWJWW

in Invercargill was rußuedV when it became i known that the Governor in Connoil was c< about to raisa the price. Section 12 provided t< that the application book be kept open L twelve hours previous to the meeting of the a Board, and they should be takon in their b order unless the applicant appeared when his name was called. Mr Macassey said he relied upon section 12 to show that the applicant should appear and follow up his application to Bhow that he had any OQlor of of right. He quoted sections 10, 29, 30, 81, 34, and 70, with the view of showing that, i apart altogether from the necessary appearance of the applicant f > % om the Board, the i Board had quasi judicial functions and could i refuse the application. Mr Haggitfc called his- Honor's attention ] to the 12th section of fcha Waste Lands Aot, ' 1865, and to the affidavit of Mr Baker. That i affidavit clearly showed that after the publi- 1 ) cation of the order in Council a telegram was i received by the .Southland Waste Lauds i Board from the Superintendent of the Province, stating that the price of land had been raised to L 3 per acre. Immediately on the receipt of that telegram, the Chairman read it in the presence of those who were then in . the Board-room ; but notwithstanding that announcement, Mr M'Phersou, on behalf »f Mr Bell, made his application to the Boattl, > and it was granted. Mr Haggitt argued that I the written paper was not the application — ! that the personal attendance of the applicaut I \ or his agent was the only one that the Waste i Lands Board or that Court could recognise, i It was nowhere provided in the Waste Lands • Act that a written application should be I made, but there was a provision for personal s attendance. The 12th section provided for f an app ication book, in which the names f shall be written, to be taken in their order. I All that Mr M'Pherson entered in the appli- - cation book was "G. M. Bell, per W. i M'Pherson, 7bh July, 1873." He contended , that the entry in the book went for nothing , without the attendance of the applicant or j bis agent. It followed that the Order in I Council having been made on the 9th July, i and the attendance of Mr M'Pherson, on be5 half of Mr Bell, beiug oa the 10th July, his 3 application at that time was for the price at j which the land was then offered, L 3 per acre. ; M'Pherson's application was granted on the ' 10th. i His Honor ! Your argument will amount 3 to this — Mr M'Pherson entered into the j Land Office and asked what the price of ; land was. The Commissioner iaformed him I that the price was L 3 per acre, and he then 3 bought it at that price. i Mr Haggitt : Yes, Mr M'Pherso-i having 3 heard that the price was L 3 per acre, pwrL chased it at that price. By Mr MTherson's 3 attendance at the time, that was the only ocl casion he legally made application for the f land, and consequently purchased it at L 3 i per acre. There were two other points, i which he would allude to as shortly as pos- > sible. The first : There was no affidavit of t Mr Bell, and nothing to show that Mr M'Pherson was not taking these proceedings on his own responsibility, and consequently he (Mr Haggitt) was clear that M'Pherson was not right in applying for the order of the Court. There was no evidence before 1 the Court that Mr Bell was the real appli- . cant. [ Wednesday, September 9. r MAJfDAMUS.— EX PARTS BELI. Argument in fcbis case was continued. Mr Haggitfc said the practice of sending - in written applications Bad probably been ; continued without authority of law, in cons sequence of its having been in vogue under the old land regulations. Something wonld * tnrn o" the *■<•*>**■ "«»i»t»H««*fci<m,"_ .and he] c would ask th& Court to notice the terms in .. which that word was used in the Southland : , Wagfce Lands Act. Another point was that c tfe.erj3 pould be no such thing as a bargain if between individuals when one party was n meaning one tfajng and the other party was I. meaning something pig*- Erea supposing ir the applicant and the Waste fcands .board [. understood each other — that they (feoth parsr ties) agreed upon LI per acre — the question j ') still remained whether the Receiver of >f Land Be venue had not functions of his own >s ' to n<spfprm in respect to moneys he had to c receive. b, Mr Smith ?aii jfchpj: e was no weight in the ie preliminary objec,tapn th^Jb the writ was im!p properly addressed. The argument that the j. ] same rules applied in the event oi fficmdaTfius >£ i being granted iv the same way as in an ordinf, ary action had no force. He hoped to be re able to show that »o far as the offering of i. lands was concerned tfrere was no distinction is in principle as between land offered under jt, the Southland Waste Lands Ajjt and land Ie offered in Otago proper under the Otago te Waste Lands Aob, although there was a n difference as a matter of practice. Section k 23 regulated the conduct of the Oomnaisp. sioner of Crown Lands in that particular— jf j Ihat all lands, with certain exceptions, ie tfhoujd fee open to the public to be taken up is »fc 20s pc? #ere. It was most clearly a h standing .offer *o§4g by the Crown, from the I, Legislature, to any pgr^on to take up all or s any of such lauds 9* tfce specified price of ). 20s per acre ; and therefore wfcien t a person d properly signified his desire to take jjp #ny c such lauds in the mode prescribed by the < a Act, that signification amounted to an accept>f aaee of the standing offer made by theLegisb latnr,s, #gd from that momenta contract was [c established Mfiding upon the Crown, and 3- which contract tfrp applicant had a right to 5- have carried v ouj>, suibpetf*, pi course, to com>t pliauce with fcfee reguiVem,eJit» Jaid down in ;e the statute, bit Haggftt had argu«s thai it >. was intended that U6fclti»g more tjhan 4&e g name of the applicant should be p]&c.ed ( on the j 6 application book, so that the intention of th,e i s applicant to apply for land when the Board ! [. met showjd not be known to others ; but he l (Mr Smith) safcmftted that that was a very r forced construction feo put on the Act, and a ,f most unreasonable one W $kj- a instance Q 1 here was nothing in principle to distinguish r this case from that of O'Kane v. The W#sse j t Lands Board of Otago, and which his Honor o had decided in that Court ; and he advanced ,f that eoafcea&on on the ground that the 4 Waste Lands Act fit Southland threw open c the whole of its rur4 lands, with certain a exceptions, to be selected fey ike public, as 0 was done by the Otago Waste hW^ s s Act p£ 18.72. This was the win- , if ciple by whifih O'Kane's case was decided. ! i- The learned .counsel contended that it was . „ the right of Mr'B s ell to hara fch3 land he had a applied for, as being in aceordanfie with- the , ■ clear intention of the Legislature, s was no other remedy ia such a ease as mis, j i- he contended, than to call bjwmi the Re- j a peiver of Land Revenue tedo his duty, and „ i«c^ive payment at U per acre : to proceed, •I in fact, by mandamus. He thought the case '. ot Tole vj 3#gina fully established the point that the Receivief .of Land Revenue was one c of those officers upoii jsrhom statutory duties a were cast, and therefore bs did not come c within the definition of merely ft Ministerial i, officer of the Crown, who cuuld not be cone teoUed by mandamus. All the cases cited: f by the other sids were clearly distinguish- ,. able from that before the Court, in which it . was merely required to compel a purely 1 statutory officer to do his duty. He also ree iied on the Civil Service ici of 1866, as pro- ; t tecting the Receiver of Waste Lands c Revenue, as well as other officers of the - Civil fcervice, against any such capricious, or . unjust exercise ©f power as was contem0 plated by the other Bide— i.e., dismissal for 1 doing what was declared by the Supreme . Court to be his duty. It was contended by 1 the other aide that there was ho contract, I but h?m«ofeua«a that th«9TTM»c»atf«w>

and no order in Council passed subsequently could have the effect of substituting a new term in that contract, namely, L 3 instead of LI. He submitted, therefore, that under all tbe circumstances the rule should bs be made absolute. Judgment was reserved.