BURGESS LIST.

Auckland Star, Volume XX, Issue 288, 4 December 1889, Page 5

BURGESS LIST.

APPLICATION FOR MANDAMUS,

A legal argument of some interest to burgessee was heard by His Honor, Mr Justice Conolly, at the Supreme Court (in Banco), this forenoon. The case was stated as follows: Wrigley v. The Mayor and Councillors of the Borough of Tauranga. Mr Cave moved for a writ of mandamus.

Mr J. M. Alexander appeared for the defendants, and in opposition to the motion.

Mr Gave read an affidavit filed by Firth YTr'igley which''set ■ forth that the said Firth YVrigley had. bceii for many years a resident of the borough of Tauranga ; that Qμ tho Ist July last ho leased from William McKenzie Collins, shipping agent, lot 328, of section 2, borough of Tauranga, for three years at £1 per annum, on condition that he (the lessor) paid all rates and taxes levied on the property; that the name of William McKenzie Collins appears on the burgess list in respect of the said allotment; that on the sth August the plaintiff forwarded to the Mayor and Councillorsjof Tauranga an application to have his name inserted on the burgess list as the occupier and person liable to pay rates on the said allotment; that the Borough Council met on the 2nd September, and, on the recommendation of the Finance Committee, refused to grant the application ; that on the 9th September William McKenzie Collins wrote to, the Borough Council stating that the plaintiff would pay the rates due on the said property for three years ; that on the 16th September the plaintiff forwarded the sum of ten pence in payment of rates for the present year on the said allotment; that the plaintiff claims £100 damages and writ of mandamus to compel the "defendants to insert the name of Firth Wrigley on the burgees list. In support of his application Mr Cave submitted'that as Mr Wrigley was possessed of all the qualifications to have his name placed on the burgess list, it was compulsory upon this Court to grant a writ of mandamus to compel the defendants to add the plaintiff's name to the burgess list.

His Honor agreed that this latter was a correct interpretation of the law. Mr Cave went on to quote authorities on the subject, and argued, further, that even if the plaintiff had leased the allotment for the purpose of obtaining a qualification to vote in the borough, he was entitled to have his name on the burgese list. Mr Firth Wrigley had proved himself to be the holder of the lease of this allotment, and that he was also the occupier of the land.

His Honor said it had not been proved thac the plaintiff was in occupation of the land. c

Mr Alexander said he understood that his friend admitted the allotment to be a waste allotment.

Mr Cave replied, that he would admit this, bub urged at the same time that the lessee contemplated improvements, including the erection of buildings, while the plaintiff had also paid rates. Mr Alexander, io reply to the arguments urged by Mr Cave, submitted that Mr Wrigley had been somewhat premature with this action, and that the Tauranga Borough Council was entitled to further evidence as to the boria fides of the lease than that offered by Messrs Wrigley and Collinß. He (Mr Alexander), however, mainly relied on the interpretation alone of the Rating Act. He understood the intention of the Legislature, according to the interpretation clause, to be that the word "occupier," for the purposes of the present argument, meant the person by whom the property was actually occupied. His Honor raid he could not see the object of the plaintiff in applying for this writ of mandamus before trial of the action, unless he intended to drop the action if he obtained the mandamus, because the wrib of mandamus would nob pub an end to the action, to which the defendants had pleaded before this application was made. He had no doubt that if the action came to trial, the main point would nob be a matter of faob, bub a matter of law, beoause, as far as he could judge, the real question would be, •Ms Mr Wrigley an occupier within the meaning of the Rating Aeb V He might simply dismiss thie motion on the ground thab the action stands for trial next week, and he might direct at what time that action should be tried; bub he thought if he expressed his opinion on the meaning of the word "occupier," it would practically pub an end to the action, for ha must! gay, that

after the admission made by Mr Cave that this allotment was a waste allotment, and looking at the fact that Mr Wrigley in no way asserted himself to be the occupier, under the Rating Act of 1882, wnich included Tauranga, Mr Wrigley was nob the occupier of this section. Hia Honor also expressed the opinion that the motion was somewhat premature, Mr Wrigley's last application to the Borough Council on September 16th having been referred to the Finance Committee to report. The motion was dismissed, with five guineas costs.