SUPREME COURT.

Press, Volume XXX, Issue 4098, 14 September 1878, Page 3

SUPREME COURT.

■ SITTGfGS JS BANCO. JfctfBSDAT, SBPTIMBBB 12. Tn*ftaa their Honor* Mr Justice Johnston J- 8 jnd Mr Justice "Williams.] -eoCBDBD ITCffB.-AVOH BQAD sß^j ilß jj y. IHB COIX)SIA1 TBSASiraBB. a mle »iri was obfcainii at the JZZ&tbigs on July 30th last, on the moUon <»«« H « Majesty* prewwrit, of mandamus should not issue him to" pay t ? .the .aidl Boad SSflhe amount remaking payaMe and ts the said Boad Board on account of Kof £2655 ■*• 10i, being the share of £*«amof £8V»1 Ss Id to which the urn was enUlled, according *o the ap?%Lwsrt of fte Counc" of the County of amonget the eeverai road d-stucts tn f£iid county, pursuant to the provisions of Si -Financial Arrangements Act,1877. r&m rate now came on for argument. Sfe Attorney-General (Hon. R. Stoet), JtfThto the 'Crown Solicitor, Mr T. S. 55en. appeared to show cause. j with Mm Mr George Harper, .Ja**. end for the rule being made absolute. snuAttorney-General said be ™oul& open the affidavitof Mr J. L. SEifm!chairman of the Avon Eoad Board, ibe proceedings for a rale nisi Silken founded. Before doing so, he might ***.Atiis± in that affidavit Mr Wilson apSeTni two capacities, viz , m chairman of fSfiLel Board and also es chairman of a •"ly^committee ; also, that the present rtta&lTreasurer wss appointed on the 12th !3L*ifi7B and the first telegram on the eub«™ted 3rd July, 1878. The affidavit tritr Wfl»on ws3 as fo'lows : — "TjohaLeaf Wileon, of CLvktchurch, in UasdustrictofCantcrbnt/, commission agent,

I am the chairman of the Rosd Board oi the Avon dietrict. in the county of provincial strict of Canterbury. «S That on the 31st of December m the «b O. ovr Lord 1677 the eeverai sections of SeOwmtiee Act, 1876, which are enumerated Wthettfrd schedule to theaud Act had not beenbrought reto force in the said county of

"Trhab on the said 31st day of December, Ig77Vtbe amouut of the balance of the land JSd of the pwrincUl dutnct of Canterbury Sn the of the 9Jn sector.of the Financial Awangemento Act, 1876, and .fifrLrib!* amongst the seven! counties in the «a dirtrict as therein provided was the earn of £315.675 Os sd, as appears by rfSceiirfaand erpenditP'e of land fund of iL several provincial districts for the quarter Zk& on fixe said 31st day of December, ifiST and showing the balances on the eaid day under the said last-men-fisasa Act, which statement was published 'n th» "Few Zealand Gazette" issued on the 2t&'darof January, 1878. " 4 That the proportion of the said sum of 2315,675 Oj 5d which wa3 payable to the said ««nty of Selwja, and divisible amonget the ■everu wad dutiicts in the said county under Si Mofiaons of the said last-mentioned Act « tl* (ftm of £89,441 5s Id, which eaid teA-nsißtknied sum was duly apportioned by * c said county of Selwyn aoongjt Oμ several road districts pursuant to the »«laitmflj&ned Act. « 5 That fie share of the last-mentioned rom to whifih the Board of the Avon dteri* wm entitled under such apportionsteal as aforesaid, and which, pursuant to tie provmoa* of tha said Financial Aveangement* Art. 1876, and of the Public Jferasues Act, 1877, ought to have been nijd to the said Road Board by the Colonial •kmuttt within ninety days of the said 31et d*r of December, 1877, was the enm of £3656 4»10d. «6, That the said ernn of £315,675 Os sd, being roeh balance of Knd fund as aforef.a xra not paid over by the Colonial Treasurer, as required by the eaid lastreentioned Act, and in consequence of such ma-payment a meeting of the chairmen of aevfend of the Boad Boards in the said provincial district of Canterbury wsi held on or ab&Ut the 3rd day of July, 1878, of which meeting I was elected chairman, and in jcoordance with a 'resolution passed at the and meeting, I on the said last-mentioned day teesm'tted to the said Colonial Treasurer • telegram in the words and figures following, that is to cay:— Chrlstchurch, July 3rd, 1878. To the Hon. the Colonial I'reasnrer,

Wellington Committee of Ecud Board cliairmen now fitting re payment of laud fund. WiU you be pxA enough to inform diem whether balance 4a was remitted before 30th Jane, according to GuTOUraeut promise, or has been remittei asaee; afao a statemeat of total amount remitted t> Bead Boards in County of Sebsjrn on acconufc el each balance. Please reply as soon as possible, as tte eommiifcee U waiting. "7. Ihat on the same day I received from fee Secretary to the Treasury a telegram in regiy to "my said telegram, in the woide and fignret following, that is to cay :— Qofe.nxent Buildings, July 3rd, 1878. J. L. Y?iboiJ, Esq., Christchurch. Balance oi Canterbury land fund foity-sevea ttoaaad cix imndred and rixty eight pounds aaltdrjews. Sh*r& of County of Selwjn in tlat inmwes thirteen thousand five hundred and sWBEty-flne pwaids nina and firepence, which was dbfea>nied tmongst Boad Boards on 29th Jape. ■•-...

C. T. Bwxra, Secretary to Treasury. * 8. That ea the 4th day of the eaid month of July I transmitted to the siid Colonial J&easaer, a telegram in the words and figures ießem'wg, flat a to jay : — Christchurch, July 4th, 1878. The Eon. Colonial! reasurer, Wellington. Ifeafe far Msgrva. The JE13.5719s 5d said *»"lure' be»n distributed on the 29tb June has *a*;j«l reached ttoad Boards. Will you be good ew# to fornish Aran Eoad Board, of which I BBS <hair<nan, a list of the deductions which rafaee the sum of X315,0J0 in hand on the 31st Beeember, to £47,000.

J. L. WiteoN, Chairman ai Boad Board Coat erence. e 9. That on the sth day of the said month ci July I received from the said Secretary to the Treasury a telegram in the words and Jsgsres following, that is to say: — Government Buildings, 1.15 p.m., July sth, 1878. 7. Wilson, Esq., Christchurch. The acconnts are bong prepared and i<3l be pj&Sshed shortly. C. T. Batkin, Sec. Treasury. "10. That on or about the sfch day of the Mid month of July the said Boad Board of the Avon di*triet received through the Bank «i Sew Zealand at Christchurch, as the share «f the said Road Board, of the sum of £13,571 9s 5d mentioned in the said telegram el the Secretary to the Treasury, dated the 3rd <ky of the said month of July, the sum «£ £416 59 43, and the said Boad Board of ifes Ann district has not received any further Of other *urn of money for or on account of &c «fasre of the said Board of the said Msaee of 'and fund to 31st December, 1877. *;il. That bo far as I am informed and I>e!leve,Ba each accounts as mentioned and eterred to in the said telegram of the Seereteytothe Treasury, dated the sth day of *My hare jet been published, end I Terily fctfiere that the eaid last-mentioned telegram Mo* bena Mc, and that bo such accounte as •»li«ein mentioned are being prepared or eenewesarr to be pwpartsd, and I veiily fc«Sere that the raid telegram was cent for the ■afe purpose of delay. "12. That the eaid Eoad Board of tie Atob district ie deeirous of having her Hafesty's Prerogatrre Writ of Mandamus *»*d out of this honorable Court to the eaid Catonial Treasurer, oommanding him to pay *»a» vo& Eoad Board the amount still reaaaHiig payable and unpaid b> the said Boad OB account of the said earn of £3696 %1M apportioned to it aforetaid." He w&uH new read to the Court the •wrasag affidavit.of the Colonial Treasurer which w» as followe*— » "1, JoKn B*]l*neo, of Wellington, in tihe eHooy of X*« Zealsad, Colonial Treasurer of I *ie aud eolaay, hereby make oath and eay--* _"!. I am a member of the Executive J«B*«3 of the colony, holding the office of ~"fa»iTTeaciirer, having been appointed to •*■* flfiee en the 13th day of July Let, ** 2. On tie 2nd day of August instant a *2*<tf **» rule nui obtained herein was •""j«*?<m mc at Wellington, and I have «5J' **?* of the affidavit of John Leaf *%iii sworn and filed herein, upon which i granted. - ! THfljoßt admitting any of the allegaS"* , f? *• eaid affidavit to be true, I cay waSaß-feeaeys legally payable to tiie Go--3?™ aeßt <* Hew Zealand are the property "ft?3*P*l» account.' revenue is payable to the Qo3?*e»«*ef »«w Zealand, and is the property SfL I, *^ , wd that a« each Colonial «fo*«aid I barenot the control «wb money. 6. By ifae'Mb.. Act, 1867, no

part of Her Majesty's revenue is payable by the Colonial Trea»P»er except 'n pr-suanee of a wstranb or warrants ouder the hand of the Governor addressed f* the OolorHl Treasurer. : "6. That no each w«\. ant or wawanta for the payment of any of the moneys mentioned 1 in the said affidavit has or have been addressed to meinv/ttue of my M'jdcffice, nor 8s sin I informed and believe t i my predecessor in the said office. "7. ITtr'.iher, by the laet-mentiened Act aad the several Acts amending the same, the mode of paying moneys oat of the pubic account reqv'ree the approval of the commiesioners of audit, or one of them, and any order made on the bank where -fee public account is kept for payment of any moneys thereout bears the jo-nt signatures of the Colonial Trea-nzrer and the commissioners of audit, or one of them, as aforesaid.

" 8. The commissioners of audit exercise an independent dv>cretion es to the course they will tike in aoprot Jng or sanctioning any pay* meats out o<. the public account, and under the said Public Revenues Acts must be satisfied that each snch payment hn been legally appropriate 1 to the service for which the same is required, and can be paid without exceeding the amount so appropriated ; nor are such conuciseioners of auci't *i respect of the premises in any way under the control or direction of the Colonial Treasurer.

"9. I am advised and believe that the fourth paragraph of the s?fd affidavit of John Leaf Wilson should have set forth the mode in which and the authoi.ty by which the sum of £89,441 5s Id was appropriated by the Council of the county of amongst the said eeverai Boad Boards.

" 10. I am ft" cher advised and believe that the said affidavit should have disclosed what was the constitution of the Boad Board of the Avon district, and in what manner the said Boad Board became entitled to a proportionate share of the moneys in the said affidavit mentioned and clp ; med to be payable to such Board.

" 11. With respect to the fifth and following paragraphs of the said affidavit, I say that no demand has been meie upon mc, as such Colopifll Treasurer as aforoaid, for payment of the sums a'legcJ to be payable to the said Boad Board of the Avon district, nor have refused to make such payment.

" 12. After making up the accounts of the land fund of the provneial district of Canterbuiy up to the 31st day of December, 1877 t the balance of such revenue available for distilbution among the Eoei Boards in the said district wai £17,668 Os 6d, which sum has been paid and distributed m the manner reqoired by law.

" 13. Lastly, I am aiilscd and believe that the land revenue and moneys referred to in the said affidavit of the said John Leaf Wilson (being the land revenue and moneys referred to in the said affidavit of the eaid John Leaf Wilson), being the property of her Majesty the Queen, the prerogative writ of mandamus should not be issued agarast mc in respect of my office as Colonial Treaever as aforesaid for the purposes and in the manner in the said rv\e mentioned, and that if so issued the same would be fruitless and unavailing."

He should now proceed to state his points of objection to the lu'e. The first of these trould be that the Court has no knowledge of any Corporation, such as is styled the Boad Board of the Avon district, in the County of Selwyn. If it be a corporation it could not be a person. There was no Act of Parliament in New Zealand creating such Boad Board a conjoi-ition, and if it wae created by a Provincial Ordinance then the Court could not take judicial notice of it. Secondly, he submitted that on the face of the affidavit of Mr Wilson there was no evidence how the earn now claimed became due, or how the sum came to be apportioned to any such corporation. Thirdly, it appeared from the affidavit of Mr Wilson that all the monies alleged to be admitted by the Secretary of the Treasury to be due have been paid. Fourthly, and this was perhaps the most important point in the whole case, he submitted that no <manda<mu* whatever could issue against an officer -who bed a character, such as the Colonial Treasurer.

His Honor Mr Justice Johnston, asked the Attorney-General if he showed th'>. The Attorney-General replied that he should be prepared to cite cases to prove b»e contention. • ■ '' .

Hia Honor—ln respect of his character as a political officer? The Attorney you- Honor, I shall ohow from cases that such is the case. As regards the case of King v the Lords Commissioners of the Treasui/, which appears from the argument on the rule nisi to have been cited as a strong case' in support, I shall show from the judgments of several judges that this ease has been looked upon as oaring been decided upon very questionable grounds. His Honor—That case was cited on an alleged admission by the Government by pub lication in the " Gazette" that there was a certain ascertained balance in hand.

The Attorney-General would deal with that presently. The last objection wt« that he submitted-that no mandamus could be issued unless it coold be made available. In this ewe the Court was only asked to take the preliminaiy step. His Honor Mr Justice Johnston—We*re asked to issue a mandamus calling upon the Treasurer to pay over a certain sum of money alleged to be due. The Attorney- General was aware of that, but he submitted that the warrant of the Governor must first issue to the officer before he can pay any money, and it is not asked that a ma ndamvg should issue against the Governor. They eaid that the primary step had not been taken.

His Honor Judge Johnston—Do you make ary point of the Treasurer not being a body corporate ? In Begina v. Bell, ex parie in the Court of Appeal, this was done. Hie Honor Judge Wilhame—l think that this question hardly arises now. Mr Ballauce was I'reaeurer when the rule wst granted.

His Honor Judge Johnston—Yes:; but he was not to when, the demand was made.

The Attorm/y-General did not raise that point. Iα dealing with the first point of hie objection, that the Court had no knowledge of any corporation such as the Boad Board of the Axon district, county of Selwyn, he submitted that, in cases where a mandamus was applied for, it was clearly laid down that the party applying must mate out a clear legal right to it. It was so stated in all the text books. In this case the first step to be taken was to show that the Eoad Board mentioned was a Boad Board in the way set forth in the Counties Act. The only way in which a corporation could be created was by statute, and there was no evidence at all that this Boad Board had been so. created.

His Honor Judge Johnston —Are we bound to ignore the fact that there are fisad Boards in New Zealand ?

The Attorney -General did not iaj that, but he said that the Court was not bound to take judicial notice of any particular Soad Board unless it is shown how it is created. At home a corporation was created by Act or old charter, here it was by Act. In this case so evidence had been given that this Bead Board was created by Act. The interpretation clause of the Counties Act only went as far as to say "Road Board mears the Council, Board, trustees, or the persons or body, as the case may be, having the management, control, or care of roads or highways uader any Act of the General Assembly or under any Act or Ordinance of any Provincial Legislature in force at the time of coming into force of this Act." It would be seen that this said the *» persons or body." There was no incorporation there. He would now show the reasons why the constitution of this Boad Board should be put in. How was the Court to know that this Board was incorporated ? j There was an Unincorporated Boards Act in New Zealand, which gave power to Boarde I not incorporated to sue through their chairmen.

Hie Honor Judge Johnston—Your argument wouM bare been quite right if the Boad Boards were existing only under Provincial Ordinances; but they have been recognised as part of the system. The Public Works Act reoogntsee them as bodies having the care of the roads, so that you are going too far to say that the Court cannot take judicial notioe of Boad Boards. The Attorney-eeneral would put ft this way—that the clause* of the Public Works Act and the Countiee Act contemplated Boad Boards existing washout being incorporated; and the*, he submitted, was a sufficient "SiTHOTO* Judge Johnston—But what does « body " meaa but a corporabon? The Attorney-General would - person » mean ? The very fact ttot there was power under an Act of the Assembly to unincorporated Boarde to ane made necessary to act out in this application whether it was an incorporated body or not, so that tins Court might know. Toemtwptetation clause of the PabGe Workr Art Vμ to this effect:—"Boed Bond or Board

means any Bo? I Board constituted by .any Act or Ordinance of the General Assembly, or of any Provincial Legislature, and includes any Board of Commiseionere or Trustees having the control and Management of highways.* . He therefore fisbmitted that aa there wan no Act of the General Assembly constituting a Board kno* j as the Avon Boad Board, the method of its constitution should have been shown.

His Honor Mr JcMice WPHame— Wou'd

not it be open to you on the issue of the mattdmwtiu to object that the Board was not a corporation ? The Atfcoiaey-General submitted that it was iaid down in the text books that if it was w.'shrd to take objection they must do so in the first instance. Then the second po'it of the objections taken by h : m was that there was no evidence before the Commas to how these moneys were alleged to be dne. The allegation in the affidavit of Mr Wilson was as follows. He was quoting from the third paragraph. In that Mr Wilson said :— " That on the said 31st day of December, 1877, the amount <ti the balance of the land fund of the provincial district of Canterbury within the meaning of the 9th section of the Financial Arrangements Act, 1876, and ditieable amongst the seveial counties in the said district aa therein provided, was the sum of £315,675 Oβ sd, as appears by a sHtement of receipts and expenditure of land fund of the several provincial districts for the quarter i ended on the said 31st day of December, 1877, and showing the balances on the said last-mentioned day under the said lastmentioned Act, which statement was published in the ' New Zealand Gazette' issued on the 24th day of January, 1878." That was how they m?ie it up -that was the full sum. In the fourth ppi igrnph they say the proportion is so and so, namely : —"That the proportion of the said sum of £315,675 03 5d which wee payable to the said county of Selwyrj, and dtvisable amongst the several road districts in the said county under the provisions of the said l?9t-mentioncd Act was the sum of £89,441 15s Id, which said Icstmentioned earn was duly apportioned by the Council of the said county of Selwj j amongst the several road districts pr-euant to the said last-mentioned Act." How d'd that proportion arise ? He submitted that this ought to be shewn.

His Honor Mr Justice Johnston—lt was accounted for in this way in moving for the rule, that you yourselves had paid on tliat basis.

The Attorney-G-eneial—We only paid as far as it went.

His, Honor Mr Justice Johnston—But yon must have ascertained that basis.

The Attorney-General—lt only amounts to this, that we have p?id all we had in our bands. The way to test it is this, ff it was a declaration it would require to be show J how the amount sought to be recovered was made out to be due.

His Honor Judge Johnston—lt may be so. But you must remember that affidavit} need not be go full as a declaration.

The Attorney-General would submit that an application of this character should be as fr'l and complete as 8 plaintiff proving Mβ case. The next point he should submit of objection was of veiy much more importance. It was that on the .affidavits with the telegrams set forth there was an admission by Mr Wi'sonthat a.U that'the Treasurer had admitted t:> be due had been paid. Now tb ; s was veiy important when they came to discuss the other questions. TTi« Honor Mr Justice Johnston—Don't let m mistake. You say that the chairman, in his affidavit, admits that att that is said to be due in the correspondence has been paid. But then they say " Oh! but there is the 'Gazette,' in which you admit that so much money has been paid in," Sou might have paid all that which you have admitted on the cpivespondence.

The Attorney-General said that the Legislature hai given them ninety days to p-iy this in. Why nad this Dinety days been given ? In order to enable the deductions which were to be made to be asceitained. What he said was this : that there waa an admission that the Treasurer had paid all that was due. He now came to the next point in his argument, viz., that no mandamus can issue against a political officer, such as the Colonial Treasurer undoubtedly was. Practically he was a political officer, and there was two different sets of rea-u>ns why this was so in law. In England the reason was that it would be calling upon the Crow .a in one capacity to perform its duty in another. In America the reason— wliioh appeared to him 15 have more seire in it —was that the legislative, judicial, and executive were three co-ordinate bodies. If the judicial were to interfere with the executive it might as we! l , fitetfere with the legislative.

His Honor Mr Justice Johnston—But you do not dispute that the judicial has power to decide whether legislation n according to law or not. .'"■■.■

t The Attorney-General—ln the case of Bobinson v Beynolds, Chapman, J., went the other way. If the judicial body found that the Legislature had exceeded its powers it would then be competent to say that they had exceeded the law, and this point had been very ably argued in the case referred to. He would put it like this to show the way in which it applied to executive officers : there was a mandamvs applied for in a certain case to compel the Speaker of the House to perform a certain act, viz., to certify to the paesing of certain Bills. It wai held tha*-< the mandamus could not lie, es there were thre bodies, as he had mentioned, and the judicial could not interfere with either. He would now quote from an American work, High on Extraordinary Legal Kemediea, pjge 95. The extract was as follows :—"The chief executive of the State is as to the performance of any and all official dutiee entirely removed from the control of the Courts, and he is beyond reach of mandamus, not only as to duties of a strictly exeoutive or political nature, but even as to acts purely ministerial whose performance the Legislature may have required at his hands. In support of this doctrine the Courts adopting it have relied largely on the'threefold division of the powers of Government which prevail in this country, and upon the necessity of maintaining the perfect independence of the executive legislative and judicial departments. And while under the American system it is intended that the functions of these co-ordinate departments shall be conjointly exercised,, each is to be closely confined to its own particular sphere, and any interference on the part of the judicial with the functions of the executive, either to command the execution of a duty enjoined on it by law or to regulate the management of its performance, is an unwarrantable assumption of power upon the part of the judiciary, alike subversive of the political balance between the three great departments and destructive of the independence of the executive. The executive department as to the discharge of its official functions is responsible, not to the judiciary bat to the people, and the Courts can no more interfere with the executive discretion than can the legislature or executive with the judicial discretion. On page 93 of the same work it was stated— " None the less is it an executive act, because it is positively required of the Government by l»w. The mere fact that no discretion is left with the executive as to the manner of ita performance does not render it a Ministerial duty, in the sense that a mandamus will lie to compel the performance. The mere absence, therefore, of any element of discretion as to the performance of the act cannot change the character or warrant the interposition of the extraordinary power of the judiciary." In a judgment by Wagner J. (American), he said, " We do not consider that the duty of the Executive becomes Ministerial, because no discretion is left as to the manner of ita performance, and that in such case the Court may interfere to enforce performance. In many cases no discretion is vested with the Governor of a State; his acts and functions xnuet be performed in strict accordance with specific law; but the Court is not on that account invested with power to compel the acts, duties, and functions to be performed." Again, High, Page 100, says— " The acts must still be performed in his political capacity, for it is only in that capacity that the power is conferred on him, and being entrusted to the Executive department co -nomine, it is necessarily an official act" On the same subject Shepley, C.J., says—"Tt does not follow that an act cannot be the official act of a department of the Government, because other persons might lawfully have performed the same acts if the performance by law had been entrusted to them. Questions of much nicety have arisen in determining the extent to which the Courts may interfere by mandamvs with tihe heads of the Government of the United States, Cabinet officers and others of a like nature, whose general f unctions are of an executive political character. The true test to be applied in cases of this nature is whether the duty is of an executive or political character requiring the exercise of official judgment, or

whether it is mjaisterial in its nalrre..mxdv"but the exerciee of no special discretion, being eplcffiffUy and peremptorily t «4j' w ** n ™? : officer. In EogW * w.it has been granted to the Lords of the 'rCxc-v-.j to compel them to make payment of a pension' properly aliowii ont of 8 fnd appropilated «>^ th « purpose, there being no other independent le<ul remedy. In such a c;-w the grpuxda of relief were twofold. F : -et, the eretenw of a clear legal right in the claimant invowng a corresponding dnty on the part of the officials; and second, the absence of any adequate remedy at law in the ordinary c»urse of proceeding. Theae conditions Baiting, mandamus is recogaised as the onlyafproremedy equal to afford redress. Xaney, C. J., also said, "The hefi of the Executive department is constitationallf required to exerciee judgment and diecrttion. He meet exeicise t>'s discretion and judgment i~i the Jaw and the resolutions of Congress." 'x'hese authorities, he contended, npbeld the objection token by him that ; -i this c?se no mandamus wouw lie against the Colonial Treasurer, he being a political officer and a member of the Executive. Hie Honor Mr Justice WJl'iams—Bo far es as I c -n gather from the Amman decisions, no mandamus cor Id Mc against any officer, whether polit ; cal or otherwise, The Attorney-General—Not agrnst any; member of the President's Cab'net recognised by statute in America ; it cor!d not Ye against the Governor of a Siite or one of his Executive. He shorld quote cases to show that when a statutory duty had been cast on on a Governor in a State, or a member of the Cabinet, a mandamus couTd not lie unless what they had to do was disassociated from his political character. The English law laid down in 4, A. & E., and example 3 of that case were given in several succeeding ones. (Case cited, 4, A. &E ). Tb's case he contended upheld b ; s objection that there was no authoiity for a mandamus issuing in the case now before the Couifc. There were two reasons why tt's tbia was co. There was no admission on their part that the Colonial Treasurer hei in b ; s hands any sum of money to pay to tire particular Road Board. His Honor Mr Justice Johnston —It is not suggested that, beyond the statement **i the " Gazette," there is any admission that the Colonial Treasurer has any money *n his hands.

The Attorney-Geneia!— We say that the statement in the " Gazette" is only, worth what it purports to be—viz, a statement of accounts, and not an admiesion that we bare m onr hands a cci Ji'n sum of money for a specific purpose. ' His Honor Mr Justice Johnston—They say here is a document purporting to be issued by the public officer under the authority of the Public Revenues Act, wbioh says that the total balance when eicertiined shall be paid over to the Road Boards in ninety days.

The Attorney-General—What we cay is this. The do?nment is what it puiports to be—viz., a statement of the revenue and expenditure of the land fund. It does not say that it i* the balance of the amount which is payable ti certain Road Boards. This ia signed by who ? By T; J. Ga*in, secretary for the Treaeury. His Honor Mr Jnstice Johnston—But you w'R hardly cay that this shows that it is not authorised by the Government ? The Attorney-General—But it only appears in the " Gazette."

His Honor Mr Justice Williams—Wnat you say Mr Attorney is, that it is no evidence that all the deductions have been made that ehonld have been ?

The Attorney-General—Exactly so. There might have been some force in the argument if the statute said that so soon as they fonnd out what deductions were to be made, it should be published in the " Gazette." There wa« no statute to compel them to do this. If they published the amount, it would not be neceseai/ to say that this was the amount due and payable. Nor was there anything in the Financial Arrangements Act to compel the publication of the accounts when made np and the deductions made. The Parliament was the only body entitled to get the accounts. He would pat it thus. Supposing the printer had made a mistake of £IC3,CCJ, or the accountant, was the Colonial Treasurer to be mandamused to pay money which was not ''n h?4 hands P He put it thus to show the position of the Treasurer. Even if the money were in the Treasury, the Treasurer could notpay without first obtaining the warrant of the Governor, and not then unit , '! it had passed the Commissioners of Audit. He would now detain their Honours for a few moments whilst he brought before them the statue of the Treasurer es defined by legislation, to show that he was a political officer, and that, therefore, on the authoiity of the cases he had cited, a mandamus could not lie against him. The Civil Service Act of 1866 made a dietincfcion between responsible Ministers and Civil servants, and this distinction was noticeable throughout all their legislation. Section 2 of the Civil Service Act, 1866, said :— "11. Nothing in this Act shall apply except as hereinafter provided to any responsible Minister or to any Judge of the Supreme Court or to any officer of either House of Parliament or tD the auditor or Comptroller of Public Accounts or to any officer the right to appoint whom is dot vested in the Governor or to any officer of or member of a colonial military or volunteer force or to any person paid by fees or commission nor to any officer appointed by the Governor to whose office salary is not appropriated by the Colonial Legislature or tj any person holding any honoraiy office or employed for any temporary service only." And the Interpretation Act, 1878, seotio n 12 said—

12. In the construction of all Acta of the General Assembly passed or to be passed and of all ordinances of the Governor Governor-in-Chief or Lieutenant-Goveinor and Legislative Council of New Zealand the words and expressions following shall have the meanings hereby assigned to them that ie to say— The term "Her Majesty" shall inolude Her Majesty her heirs and successors. The terms "Governor" "G-overnor-in-Cbief" and "Lieutenant-Governor shall mean the person for the time being lawfully administering the Government of New Zealand. The term " Constitution Act" shall mean an Act of the Imperial Parliament made and passed in the session held in the fifteenth and sixteenth years of Her Majesty Queen Victoria chapter seventy-two intituled an Act to grant a Representative Constitution to the Colony of New Zealand. The term " Constitution Amendment Act " shall mean an Act of the Imperial Parliament made and passed in the session held in the twentieth and twenty-first years of her Majesty Queen Victoria chapter fifty-three intituled "An Act to amend the Act for granting a Representative Constitution to the colony of New Zealand." The terms " the colony" and " this colony" ehall severally mean the colony of New Zealand the boundaries whereof shall be deemed to include all territories islands and countries lying between the thirty-third parallel of South latitude and the fifty-third parallel of South latitude and the one hundred and sixty-eecond degree of East longitude and the one hundred end seventy-third degree of West longitude reckoning from the meridian of Greenwich. The terms " Government Gazette and " New Zealand Gazette" shall mean the Gazette published by or under the authority of the Government of New Zealand. . „ The words "oath" and "affidavit 'shall include affirmation and declaration, and the word " swear" shall include affirm and declare in the case cf per- j eons allowed by law to affirm or de- j olare instead of swearing. Words importing the singular number only shall include the plural number and words importing the plural number only ehall include the singular number and words importing the masculine gender only shall include females unless the contrary as to number or gender is expressly provided. The word " month " shall mean calendar month unices words be added showing a lunar month to be intended. The word "person" ehall include a corporation unless there be expressed something repugnant to or inconsistent with that interpretation. The term "Colonial Secretary" shall inchtde the Minister for the time being acting for the Colonial Secretary. JRie term " Colonial Treasurer" thaU include the Minister for the tame being acting for the Coloni»l Treasurer. The term "Commissioner of Customs-" ■hall include the Minister for the time being acting fo* tf» Commissioner of Customs.

tt -,..lhejtena.itßoetmarter-fiaaei4l"--ahpU.-io.. V elude the for the time berig : «ct"jg for the Postmfiiter-GeijeraL : i The words " Atf Jrney-General" shs-H "iI elude Her Majesty's Solicitor-General ' in New ZeaUnd dvi ing any vacancy in the office of Attorney-General and du> Jng the absence of the Atfoi aeyGeneral from New Zealand. The word " land" eha't include messuiges tenements »nd hereditaments houses and bn'ld'tigs unless there are worda to exclude houses and birldiogs or to restalet the meaning to tenements of some psiiicr l ?- tenr-e. Then the Civil List Act, 1863, Amendment Act, 1873, provided*for the payment of what were termed responsible Ministers, of which the Colonial Treasurer was one. He had cited these flections ta show that the Color'?'. T/e isurer wa-> regaidcd throughout a l ' the legi»la--1 tion es a responsible Minister and po'iticil officer. He therefore submitted that he was only responsible to Parliament and not t:> the Court for the manner in which he had diecharged his duties, and that a w.it of mandamus wor.ld not therefore ,; e. Now with regard to the land fptid. First, he would refer r j the Public Bevenues Act of 1867. It was true that th had been amended by the Pnblio Revenues Act of 1873 and was not now law, but he wishrd to quote it to show how they bad dealt with the land revenue, and to prove that the land fund hei always been colonial revenue. It wn a l, piid to the public account, but put to a separate account cJ'cd the land fund account, which had to be operated upon in the same way a 9 a vote by Pvliament. The sixth section of the Pub l; .c Eevenucg Act, 1867, showtd how money is to be obtained out of the public account. He might say, without reading through all the Acts, that the Treasurer must first get the warrant of the Govei JOr and then the endorsement of the Commissioners of Audit, and tb : i syetim st'll remains. The Public 8 , -venues Act, so far as section 16 was concerned, did not come into force untH let January, 1878, and he would «iih to po : nt out to the Cou.u that considerable difficulty arose from the fact that both the Financial Arrangements Act and the Public Bevenues Act came into force on the same day.

His Honor Mr Jnstics Johnston—But the argument on the other side in moving for the ruler nisi was that an ascertained balance appeared in the Gazette purporting to emanate from the Government.

The Attorney-General—But by law we are not bound to make the deductions before December. The statement in the Gazette does not purport to be the balance payable to Boad Boards or counties, but only as I have before stated an account of receipts and expenditure with refererce to the land fond. I shall now refer to English cases, which I contend uphold the grounds taken by mc. before doing so .let mc just cay that ?n the case which appears ta have been relied upon by tbe other eide in moving for the rule nisi, viz., Rex. v The Lords of the Treasury, A and E, the grounds of the judgment have by many of the Judges been deemed to be somewhat questionable. [Cases cited— Re Baron de Bode, 6 DowJing, 776; Eex v Commissioner of Customs, 5 A. & E., 38 ; Gibson v Eeit India Co, 5 Bing. N. 0., 202; £x parte Napier, 21 L. J., Q. 8., 332 ; Begina v Lords of Vreaeury, 41 L.J., Q 8., 178, and 7 L.R., Q. 8., 387; Regiaa v Powell, 1 Q-8., 352; Regina v Lords off the Treaeuiy, eas ■parte Queen Adelaide, 20 L. J., Q 8., 305, and 16 Q. 8., 357). He would also quote the judgment of Mr Justice Coleridge in Ex pn.rte Field. [Bead.] This was a case in which money had been voted by the Parliament , for personal use, whioh wm not the case -here, and yet a mandamus had been refused. Hie Honor Mr Justice Johnston —Their case is, that you have paid on account The Attorney-General—We have only paid what we have received; that is all.

Hie Honor Mr Justice Williams—Wβ come back to the " Gazette " after a 1!, which seems t3 be the point in the case. The Attorney-General—lf that is the only admission, then I do not think it will be neces«a\y to debate it, because there is not much to rely on under the cases I have cited, unless the amount of money is paid t> a particular officer of the department for a specific purpose. In the case of Ex parte Napier, 21 LJ., Q-8., Lord Campbell in deHveiing judgment, referred to the case of the King . v Lords of the Treasury, 41 L J., Q 8.,178, in which he said that judgment was given on the ground that the amount of money was in the hands of the Lords of the Treaeury, and for the benefit of thepaity. The case of the Queen's do*jy, 20, L.J., 305, was also referred to. There is another case which I will cite to show to what extent the words "servant of the Crown" extend. That is the case of Begina v. Powell, 1, QB., 352, in which a mandamus was refuged against a steward of the Queen's manor.on the ground he was a servant of tho Crown, and that therefore pmandavius could not be issued by the Crown in one capacity calling on the Crown in another to do certain acts. In the case of Rex v. Commissioner of Customs, 5 A. &E. 38, it was held thit the Commissioner of Customs was a servant of the Crown, and that no mandamus would lie against the Commissioner to deliver up goods on which duty had been paid, as being a servant of the Crown. [Argument in re Powell quoted.] In this case it was said that the Commissioners of Woods and Forests should have been brought before the Court, which in th» caee we say should be the Commissioners of Audit. For if the Treasurer signed something that would not give them the money, though it was in his hand?, the mandamus would be ineffectual. These cases are of value on the following points, viz.' —to show to what extent the words " servant of the Crown" extend ; ,and secondly, that the Court will not grant a mandamus if it c&anot be made effectual.

His Honor Mr Justice Johnston—Well, you say that it is asking the Colonial Treasurer to do something that is contrary to law, and what he cannot do.

The Attorney-General—We say that it cannot he done without the warrant of the Governor, and that the mandamus therefore is of no use. In the case of Powell tVie Judges would not grant the mandamus as he was a servant of the Crown, hence the mandamus would not lie. In the eases I have cited there ie very much more right than the one now before us. The rule calls upon us to chow cause why we should not pay, and we have put in an affidavit-, that he cannot do it unless bymeans of theGovernor's warrant issued according to law. In one of the cases I have referred to it wae asked that a Treasury minute should be issued, or what is known here as a warrant. The judgment in that case was to the effect that a person in the service of the Crown, and responsible to the Crown, was not amenable to the Courts in their prerogative jurisdiction. My point is that we are. not responsible to tbe Road Boarde for the money; we are responsible to the Parliament. The only control over the monies voted by Parliament is by the Audit Department,-and if the Courts were to supervise the expenditure of money voted by Parliament, then they would have to sit as a perpetual Audit Court The Courts have no business to interfere with the machinery of the Government Audit Department. If the Colonial Treasurer has received this money, how has he received it ? As the servant of the Crown. Hence, on the authority of the cases I have cited, no mandamus will lie. Cockburn, C.J., says of the case in Adclpb.ua v Ellis, referred to by my learned friend in his argument on the granting of the I rule nisi, that the grounds of decision are of very doubtful authority. I inbmit that the cases I have cited from High show that no interference by the judiciary with the executive departments can take place. The only case in which it has been held that mandamus may issue, is where the duties of the officer are of an extraneous character, requiring rather the exercise of the dufy of the individual rather than the functionary. [Case cited: U.S. of America v. Guthrie, 17 H.] The three divisions to which I have before referred are more clearly defined in America than here. This i> the test I will apply to the question. Suppose an Act passed both Homes and came to the clerk of the Parliament. Before the Governor assented to it. suppose a certificate waa asked from the Speaker that such, a Bill had been passed, could a mandamus issue to the Speaker to compel him to give it ? I say not His Honor Mr Justice Johnston—But until the Act is assented to by the Governor it is not an Act, and therefore it would not be an interference with the progress of leguiation. The Attorney-General —But if so, why then can the judicial interfere with the arrying out of the departments of the Governmenl? Then another argument I have is this. We say that there may be a statutory duty cast on the Treasurer the same as any one else, but as the Legislature has always, as I have shown, made the Treasurer a responsible Minister and political officer, he must be taken to be exercising what may be termed a political dutry. So we aay that the Treasurer's

statutory duty V not oast upon Mr -Bathatee, but on the Color ; il Leosorer by v'-ue of bie office, and the very fact of the Legislature ha> yig rceogr""std the a rcsponeible Minuter shows that it was meant to be a poetical duty, and on the authority of the cages cih i trom High no mandamus can Vβ against him ri regards the performance of such duty. The cr-es I have cited and the passages I have res J from High ere vet/ much stronger than the case now before us. Let mc put a case. Coulditbes? : d that for eveiy vote which appears on theE3ti"natCs for eveiy particr'-r tie that a mandamus coo'd issue to the Govo«."uent t j compel them to expend it? If th : s ji so there is not a cose »n which a mandamus ir'ght not be issued againt the Government.

His Honor M- Ji'Vuce Ws" ; ams—The Appropriation Act only &Ives power to the Government to spend the money *n this way, but does not confine them exactly t> it. The AifoiJey-Genei.il—The words of the Act re that " The sums hereby votrd are to be applied to the sever 1 cci vices mention i." His Honor Mr Justice Jobnet in—But you are not bound to spend it 5? you don't th"ik it wise. The Attoraey-G-eneral—But take the Appropriation Act of 1877. If there is speci il approp: .'ation, ought the money then to be paid ? His Honor Mr Justice Johnston—That is the amount which is set apaiu to enable you to piy so and so, and no more thin that, bu f there may be, as you suggest, a political crime orly. The Attorney-General.—l may say that if the Government favl to pay money as directed by the Parliament, then the Parliament has the only light to call the Treasurer to account. If the money was pp ; d to a paymaster, and be held it rs such, possibly an action would lie for money had and received. But thw does not arise here. There is no officer holding the money in his hands, which I submit is the test. There is such an officer as the Krceiver of Land revenue, and ell revenue belonging to the land fund is payable H the public account to the crtdit of the land fund account. After it is so credits 1 oertain deductions are mede, and the balance is then payable to the Boad Boards. But is the Court to make the deductions ? If this were so, we should have to have a juiy sitting to assess tho deductions which were to be made. In that case I submit the Supreme Couifc would come to be the audit department of the State, and that this would be the inevitable reault of the interference of the judicial with the executive departments of the State. The question has been raised whether the land fund is really in the consolidated fund, and to show that it is so I will quote from section 9 of the Appropriation Act of 1877 :—

9. At the close of business on the thirtyfirst day of December, one thousand eight hundred and seventy-seven, the Colonial Treasurer shall transfer to the consolidated fund the balances standing to the credit of the several accounts which, by the operation of the Pablic Revenues Act, 1877, become thereafter part of the consolidated fund ; and the several sums appropriated by this Act and payable out of such several accounts shall, after the said thiity-first day of December, be paid out of the consolidated fund. Of course this does not affect the appropriation of the money. It just shows where the balance goes to. When one turns to section 3 of the Public Revenues Act, 1877, it is provided— All moneys legally payable to the Government of New Zealand are the property of Her Majesty, and shall, except as herein otherwise provided, be kept in one account at the Bank, called " the public account." The public account shall consist of two funds: — (1) The consolidated fund, to which shall be called a", receipts, except as herein otherwise provided. (2) The public works fund, to wb'oh shall be carried the produce of all loans authoiised by Parliament to be raised and appropriated to immigration and public works.

I only cite this to show that all the balano:. under section 9 of the Financial Arrangements Act or section 16 of the Public lievenues Act must go into the consolidated fund on 31st December. After providing funds for public works, &c, the balance of the land fund goes into the public account. It must be put in there because it is part of the public account, and can only be drawa upon in tbe same way in whioh other public accounts are. I further sajjthat the Court can only interfere by mandamus where such inteiference would be effectual, and in support of tbis I will quote a case cited in Tole v Begina, Nβ* Zealand Court of Appeal," cases from Hudson and Brook, Irish Reports, page 127. [Case cited.] I will also quote several passages from Tapping on Mandamvs, in which it s is laid down that in cases of maiidacvs the prosecutor must show grounds not only that he has a legal right to the writ, but also that if granted it will be effectual. It has been held that a mandamus caunot be granted if it will prove nugatory or fruitless. [Quoted Tapping' on Mandamus, pages 13, 15, and 293. Therefore I submit to the Court that this rule should be discharged, and, as tho rule naks for costs, with costs. Mr Joynt, contra —Before proceeding to argue the case, I propose to read an affidavit which I understand my learned friend the At-torney-General intends objecting to. It is the affidavit of Mr William Jameson, clerk to the County Council of Selwyn, sworn prior to the answering one of the Colonial Treasurer. I submit that there is no rule of Court to prevent this being done. The rule of Court as to affidavits on motion provides that they must be filed three clear days before the motion.

Hie Honor Mr Juetice Johnston —I understand, Mr Joynt, that this affidavit is intended to support and strengthen the original sfll davit filed in support of the rule in respect to one point, which. I thought at the time was weak, but which on consideration afterwards I thought might be deemed sufficient. That is that there was no prima facie evidence, although there was some inferentially, that the proper course had been taken by the county under the statute, and that the proper apportionment had been notified to the Government.

The Attorney-Geneial—l don't think it worth while to sustain my objection. I will waive it-

His Honor Mr Juetice Johnston —I will ask you, Mr Attorney, if you think it is well to insist upon the first formal point of your objection—that referring to the constitution of the Board ? It seems to mc that it would be a pity if a case of so great importance as this should be decided on such a point. The Attorney-General—l may say that not being conversant with the Canterbury Ordinances, I raised the point for what it was worth. Mr Joynt —I may tell my learned friend that the Board ie incorporated under an Act of the Provincial Council entituled the Canterbury Roads Ordinance, eeeeion 27, 1872.

The Attorney-General—lf my learned friend will put in the Ordinance I will not object. Mr Joynt—l will do so. The affidavit of Mr Jameson is as follows :—

" I, William Jameson, of Chiletchurch, in the said district, clerk to the Selwyn County Council, do swear: " 1. That on or about the 24th day of March, 1877, the Chairman of the Selwyn County Council forwarded to the Colonial Secret-iry a letter in the words and figures following, that is to cay:— ' Selwyn County Counoil, « Christchurch, 24th March, 1877.

' Bir, —In accordance with clauee 31 o£ the Financial Arrangements Act, 1876, and clause 68 of the Counties Act, 1876, I hare the honour to transmit to you the following resolutions passed at a meeting of the Selwjn County Council, held on the 23rd instant. Iteaolved —'That in the opinion of thie Council the sums payable to the County of Selwyn during the current financial year, under the Financial Arrangements Act. should be divided among the several road districts in the county in the following proportions, ti'z. : —Avon, 3 percent; Btccarton, 3 percent; Templeton, 3 per cent; ffeathcote, 3 per cent; Spreydon,3 percent; Hale well, 3 per cent; Lincoln, 4 per cent; Springs, 8 per cent; EUesmere, 11 per cent j Conrtenay, 14 per cent; Malvexn,6per cent; East Malvern, 5 per cent; South Malvern, 6 per cent; Kakaia, 15 per cent; Lake Coleridge, 10 per cent; Upper Waimakariri, 3 per cent. , EβgolTed—• That in the opinion of this Council the moneys payable to the county of Selwyn during the financial year commencing the let of July next, under the Financial Arrangemente Act, 1876, and any other Acts, should be divided among the several road districts in the same proportion aa already recommended, for the finaocial' year ending 30th June next.' ' I have the honour to be, Bir, • Your obedient; servant, i ' . - 'W. BoEMßxojr, Chairman. 'IVHan/the Colonial Secretary, ,

" 2. That on or about the 31»t day of the said month of March, a reply to the said letter was received by the dhe'rman of the said Ootrcirl, m the words and figure* fo'Towing, that is to say:— 'Colonel Secretary* Office, ' Wellington, New Zealand, 4 March 29th, 1877. ' S'*r, —I have the hon >ur to acknowledge the receipt of your letter of the date quoted in the margin, transmitting copies of resolution of the Selwya County Council relative ty the distribution of moneys payable to the county among the eeveial rosa districts. ' I have the honour to be, S ; ", ' Your most obedient servant, ' For the Colonial Secretary, «G. S. COOPBB. 'The Char man of the Selwyn County Counc'l, Chris* Dhurch.' " 3. That on or about the 24th day of March, 1878, a letter was received by the ohairman of the arid Council in the words and figures following, that ia to say ' Ittasury, Wellington, • 22ud March, 1878.

' Sir, —I have the honor by direction of the Hon. the Colonial Treasurer to acknowledge the receipt of your letter of the 16i.h instant, notifying that under a resolution of the County Council the Counties Act has been brought into fn l ! operation in the county of Selwyn, and requesting that the unpaid subsidy and other moneys accruing to the county may from that data be paid to the county fund account. In reply, lam directed to inform you that the County Counoil having, by resolution in conformity with seotion 31 of the Financial|Arrangements Act, 1876, apportioned amongst the road district* of the county the whole of the moneys accruing to the county during the financial year ending on the 30th June next, the Government is advised that, notwithstanding that the whole of the Act has now been brought into force, the County Couno'l cannot assume possession or control of the county revenues until the let July, on and from which date they shall be paid over tt the county fund account as requested. • I have the honor te be, sir, ' Your most obedient servant, 'C. T. Batkin, • Secretary to the Treasury. ' The Chairman Selwyn County Council, Cbristohurch.' " It will perhaps be convenient to follow the course of my learned friend's argument, and to take hie objections seriatim. The first of these is that the Court has no judicial knowledge of the existence of a corporate body such as the Road Board of the Avon district, in the County of Selwyn. I submit to your Honors, on this point, that the Court must take judicial notice of the existence of Road Boards, because the Public Works Act, 1870, specially includes Road Boards, not only so, but also specifies their funolions. I submit that the Public Works Act deals with the Road Boards generally, and they are recognised as a portion of the system of Government. Further than this, I aay that the Colonial Treasurer is estopped from objecting to the constitution of the Board, because, as shown in Mr Jameson's affidavit, he has received a letter, in which it was stated that certain proportions were due to Road Boards in the County of Selwyn, of which the Avon is one. The Financial Arrangements Act directs the Treasurer to pay a certain amount to the Boards on receiving notice of the apportionment by the county—and he has done this. The Treasurer having received notice, and made suoh apportionment, cannot now raise the point of non-incorporation. His Honor Mr Justioe Williams—He may admit this, but he does not admit that the Board has a right to sue and be sued. The rule nisi, I may point out to you, Mr Joynt, has been sued for by the Board as a corporation. Mr Joynt—l heard the Attorney-General say so, but I am at a loss to see that we are a corporation. His Honor Mr Justice Williams—Then can you sue ? ■ Mr Joynt—Tee, your Honor, under the Unincorporated Boards Act. We have sued by our chairman, which is the course under the Financial Arrangements Act. The Act says that the money must be paid to the Road Boards, and the Treasurer says that he has paid to this Board as well 88 to other Boards. Besides this, the Financial Arrangements Act and the Publio Works Act recognise that these Boards are in exiefrrca, aid these Boards were so recognised because the Treasurer has paid certain moneys to them according to law. He has recognised the existence of tbia Board, es a Board entitled to be paid money under the Financial Arrangements Act, and I submit that the Treasurer is bound *o admit that the Avon Road Board is a Board constituted by law, and entitled to be paid money under the appropriation by the County Council of Selwyn. This is eitit is necessary for mc to do, and the Treaeeses-cannot now say that we are*-- not; entitled? Aβ -to the second point, I think I have effectually disposed of that. I think that when Mr W"son etat-js in his affidavit, as he doe?, that the proportion of the said sum of £815,003, as made by the County Council of Selwyn, is what we say is coming to the Road Board of Avon, that the objection is answered. My learned friend has not raised any question as to that apportionment, or rather the apportionment of £86,000 amongst the Boards. I submit that it is sufficient to state that the money was duly apportioned according to Act. In Threlkeld v Blackett the same question arose, whether the works done were according to the Canterbury Rivers Act, 1870, and if it were held sufficient in pleading, as it was, it is surely enough in a ill lavits. There is no difference as to how the money is apportioned. The Financial Arrangements Act, 1876, points out the mode in which it is to take place. The 9th section says that the apportionment is to be made in this way: *" (1) If any money is raised as provided by section 10, and applied to make up any deficiency in the land fund, or if any money is advanced from the consolidated fund for such purpose as provided by section 14, then the balance of the 1 md fund at any time accruing thereafter shall be applied to repay all sums so raised or advanced. (2) Subject to any such repayments the balance of land fund mentioned in section 4 shall be divided amongst the counties in the district as follows :—Three-fifths in the proportion of the areas of the several counties or parts of eountiee in the district; two-fifths in the proportion of the subsidies payable to such several counties."

I don't know whether my learned friend requires us to show the different areas and to go into figures ? The Attorney-General—l may say that a difference has arisen between the Vincent and Waitaki Counties as to whether the different amounts or areas were correct.

Mr Joynt—Aβ to the apportionment of the amount between the Eoad Boards of the county, that is to be done by resolution of the County Council, deciding the proportional parts which are to he given to the different districts. Beferring to Mr Jameson's affidavit, we find that this apportionment was made in March, 1877, the fiuancial year, which apportionment was recognised by the Treasurer, who paid on it. This disposes of the second point of the argument of the AttorneyGeneral, as we hare shown that- there has been apportionment and distribution. Now, as to the third point, we admit that all the money in the hands of the Treasurer, co far at it went, was paid. It is quite true that the proportion of money in hands of the Treasurer in June, 1877, was paid, hut we dispute that we have got all that we are entitled to, because Mr Wilson says—"6. That the said sum of £315,675 Oβ sd, being such balance of land fund as aforesaid, was not paid over by the Colonial Treasurer, as required by the said last-mentioned Act." I intend to show that the £315,000 in the hands of the Treasurer, and so admitted by the publication of the accounts in the "Gazette I hold in my hand, where that balance is shown as ascertained, was not subject to any deduction whatever; in fact all the deductions that were by law to be made bad been so made before that account was published. The statement is called a statement of receipts and expenditure of land fund, showing the balances of land fund in various districts for the period ending 31st December. My learned friend seemed inclined to dispute the existence of Mr Gavin ; but I »»y this, that the Treasurer, who, for all we know, does not know anything about figures, must be bound by that account The "Oazette," being ti» Government medium of communication withthe public, this communication being on publio matters, and being stated to be published under the authority of the Government, must be taken to be a true statement of accounts. It maybe that there is no statutory obligation on the Treasurer to publish accounts, but we say Oris, that being published, that it must be taken to be a true statement of what tie Treasurer holds in bis hands. We cannot take it that the Treasurer I

would publish erroneous or nbeolutely false st temenls, and therefore, so far as it goes, it must be taken ta bind the person who pub.''sbi i it. *

Hi* Honor Mr Justice Johnston—But Mr Jojnt, does the Treasurer sign it ? Mr Joynt—Well, jour Honor, it is dated from the T.-easury, and signed by the Accountant, of the Treasury. His Honor Mr Justice Johnston—Admitthat,)» it too much to say that you ought t"> show that Mr Gavin n a recognised official ?

Mr Joynt—But it appears in the acknowledged Government organ, one recognised by the statute and recognised by Court* of law. I say this, that it appearing in the Government " Gazette," the rueins of communication between the Government nnd the peoplp, anything which the Crown fays is illegal or improper could he disproved by distinct allegation of its untruth or incorrectness. I wish to draw , attention to the contents of this " Gazette/" Under the head of receipt* we find several items giving the balance as stated. [The learned counsel here read the various items appearing in the " Gazette, "j We find that everything that could be charged to land fund up to the 31et of December has been so charged. I therefore submit that it is clear by statute, and made doubly clear by the 10th section of the Publio Revenues Aefr, that no deductions are capable of being made except those mentioned in section 4, and its sub-sections, and sections 9, 10, and 14. I submit that the statement contains all these deductions, because the 16th section of the Public Works Act says—

" 16. The moneys appropriated by thie Act for the construction of works aud for other purposes may be paid over to such local governing bodies as the Minister for Publio Works may determine, upon such terms and conditions as shall be agreed upon between the said Minister and tiny such local governing body, and the ColoniU Treasurer shall make all such payments in accordance with any such agreement."

In point of faot, section 9 of the Financial Arrangements Act is referred to as a section which establishes the fund made available for distribution. T now propose r~> go further, and to show that there is no suoh thing as provincial liabilities. I have said that if any claim could be shown my ca;e fails in into. But I say that no such thing as provincial liabilities existed on 31st December which could by any possibility be deducted from this money. Now, de.iling with the third proposition of the At tornoy-General, I wish to show the Court tbat not only is this money payable and duo, but that there is on undeniable balance of £315,000. I am entitled to show from this sheet that this balance is not capable of reduction; and to go further, and say that it i only by provincial liabilities of Canterbury that this amount could be reduc-d. The Legislature furnishes all data by which thie fund could be affected ; and it is eet fortib in section 4 of the Financial Arrangements Act that the land fund shall be ohargeable with the interest and sinking fund of the perzna nent debt, and section 6 states what the permanent debt is. By sections 16 and 17, provincial liabilities which existed on 31st December became part of the permanent debt. [Sections 16 and 17 reed.] So. that; we find that the cash in hand on 31st December to lind fund account as first applied to the reduction of provincial liabilities, aud that if the cash was insufficient for this, the money must be raised by loan or Treasury Bills. It appears by this that the provincial liabilities existing on 31st December must be paid bycash, or an amount to be borrowed by loan or Treasury Bills, which became permanent debt, and subject to sections 2 and 6. It therefore appears to bn very clear that so provincial liabilities could exist on 31st December, becauae they would be paid by cash in hand or by the unexpended balance of the land fund. Wβ find that on the Slat December, 1876, provincial liabilities in the various districts ceased, because there was a fund provided for them, and if not sufficient, then Treasury Bills were to be issued or a loan raised. Now the Treasurer shone a clear net balance on the 31st December, 1877, of £315,000,

His Honor Mr Justice Williams—But is there anything to show that this was not part of 1876? Might there not be provincial liabilities outstanding which might not have been brought to acount ?

Mr Joynt—But these must have been paid by the Treasurer or he would have broken the law, and he cannot come here now and ear this. '

Hie Honor Mr Jui-tioe Williams—T£ any part of the land fond was in hand in Decstnber, 1876, find there were outstanding provincial liabilities, then would not the amount be ohargeable with these ?

Mr Joynt—But we are bound to n,»suine that all provincial liabilities were paid off, and before' the > Treuuear showed a balance-of d≥ 315.000 all provinoial , liabilities and charges bad been , - paid.' In the statement we find that every deduction had been made from tho land fund whioh the Government were entitled to make.

His Honor Mr Just ice Williams—Yes, If they accrued after Deco'ribe" , , 1876, but if they accrued before they were entitled to pay other liabilities as well.

Mr Joynfc—How- could the Treasurer have a balance in hand, as he eiys ho had in December, 1877, available for dietribation, unless he bad done what he is required-to do by law? It must be taken from the " Gazette," coupled with hie own statement., that this was a . clear balance, and that the two statement*—one in the "β-nzstto," that he had a balance of £315,000, and one in Jane, that he had only £48,000,, we totally at variance and cannot be reconciled. My learned friend has stated that there is nothing stated in the "GezHte" that the money is to paid by the Treasurer. If there be nothing in the statement to nay that he would pay, my learned friend ie quite right to uee ifc in an argument such as this, but the section of the Act on which I rely as casting a legal duty on the Treasurer is th« 31et section of the Financial Arrangements Act, coupled with the 106 th section of the Oouities Act., And I submit that there lie no doubt that this section refers to section 9, which provides for the money coming to the dbunly to be paid by the Colonial Treasurer aooording to the apportionment of the county. Thiu there is a duty cast on the Colonial Treasurer to issue and pay the money so apportioned to the various road districts. I think that the fourth point taken by my learned friend will rave the greatest amount of contention. On this my learned friend has given us no English casee, though he has given us American law. We don't in banco even take onr own text books. Tho At-torney-General attempted to show to your Honors from the American cues tliut what wae required of the Trpaeurer was what wai cant upon him in the discharge of his ordinary official duty. I say thet it ie not so, but that it ie a legal and statutory duty oust upon him. There is no exercise of discretion in the matter. The accounts are submitted to him from the heads of.departments, when deductions are made from a certain sum. He has no right to say that this sum shall or shall not be put down against a certain department. He has simply to make deductions—a mere mechanical effort, and not calling for the exercise of any official judgment or discretion. The law iay« he shall meko these deductions. Where, then, is the discretion ?|g His Honor Mr Justice Johnston -Well; but then they say there can not be money without the warrant of the Governor.

Mr Joynt—l will deal with that, your Honor, When I come to my learned friend's fifth point. I say that there is a statutory obligation on the Treasurer to pay this money under the 4th sub-section of the financial Arrangemente Act, Now I submit to the Court that the balance of the English authorities go to this, that where a legal obligation is created by statute devolving on any officer net representing the Queen, and that there exists any third perton having a right to demand the fulfilment of that obligation, that third person ha* a right to call for tho interference of the Court by mandamus. I submit that we are not looking to the Crown only, and that in considering the power of this Court to deal with an officer like the Colonial Treasurer we have no right to assume that if this Court iaauee a mandatory writ to auoh officer that the Governor will not issue his warrant to complete the matter. Hi* Honor Mr Justice Johnston—Could we Mine a mandamus calling on John Baliance, Esq., not being a corporation. Mr Joynt—l submit that the Court c n call upon the Treasurer a* such to fulfil the ditty imposed on him by statute. If we cannet do this, then the Legislature haa cast a duty on the Colonial Treasurer which he is unable to perform. I say that it does not lie in the mouth of the Government to say that though the legislature hai oast the duty on tho Treasurer to pay such money, it cannot be done, because of some one behind him or

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