SPORTING.

Press, Volume XXX, Issue 4098, 14 September 1878, Page 5

SPORTING.

Supreme Court—(Continued frontpage 3). before him. I submit that, even if it has gone to the general revenue, this Court has a right to call on the Treasurer to fulfil the duty cast npon him. If the Treasurer comes down here and says that he ha» forwarded a warrant to the Governor, and that he refuses to sign it, and that all has been done by the Treasurer that could be done, then, of course, no more could be said ; bat he has not done so. He has said in his affidavit that £17,000 is the only balance in hand, bat he does not say that there was not £315,000 in hand when he issued the " Gazette." I submit that we have no right to take any notice of that. We have here an authorised account given in the "Gazette." His Honor Mr Justice Johnston—But not sworn to at aIL Mr Joynt—l submit to your Honor there is nothing in the affidavit of the Treasurer that this £315,000 was not in his hands on December 31st, 1877. His Honor Mr Justice Johnston—2To, but he cays he has £47,000 only. Mr Joynt—Yes, but he says available for distribution. What right had he to add these words to it ? I say that it is not for the Colonial Treasurer to say what is available. What we want him to do is to pay out the amount he acknowledges he had in his hands on the 31st December, when all deductions, which he was allowed by law to make, have been made. I submit that the Treasurer has shown the balance he had in his hands on the 31st December, 1877, and the law says that he must pay this over to the Eoad Boards. He cannot come in August or September, and say that such and such was the only amount he had available for distribution. The law says what amount should be for distribution ? In his statement, which he has published, the Treaneurer shows that, after making all the deductions allowed by law, he had a certain amount for distribution. We don't want Mr Billance to tell us what amount he has in his hands available for distribution, but to tell us what money he possesses after all legal deductions are made. There is no explanation made of this, no statement that this or that was wrong. All the cases go to show that where an obligation is cast npon an officer by statute, and a corresponding right in this on the part of another to claim the fulfilment of that obligation, a mandamus would lie. I wish to draw attention to one circumstance as to, the land fund. The Colonial Treasurer appears to have peculiar powers respecting the land fund, which differ from those in regard to any other fund. My I learned friend attempted to show that the j land fund is Queen's revenue, and can only be operated upon through the warrant of the Governor. But the land fund is differently dealt with by the Treasurer in the latitude of appropriation and amount of discretion, which is different and greater than with regard to any other fund. This is shown by the 12th section of the Public Revenues Act, 186S, the provisions of which are still law [quoted]. I don't say with regard to the land fund that it does not go into the jjublic account at all; but I cay that it ie'not interfered with by the Public Eevenues Act, 1877. I don't want the Court to do more than this : to take the figures of the Colonial Treasurer as stated by him, and compel him to. apply the sum in hie hands as stated. It will be seen from what I have said that the Colonial Treasurer has larger and more absolute control over this fund than any other.

Hie Honor Mr Justice Johnston—lf it is shown that the Treasurer has not in his hands to meet the demands of your Board would a mandamus lie ? Would he not be liable only to prosecution, criminally or politically ? A mandamus is to compel a man, to do what he is able to do.

Mr Joynt—The Treasurer has never said that he had not in his .hands the £315,000 at the time of the publication of the " Gazette." He tells us that he has available for distribution £48,000, a statement that is quite inconsistent with that in the " Gazette," that he had in hie hands on the 31st December, 1877, £315,000. He does not say that he had not this amount in his hands on the 31st December, but goes on to say that he has only £43,000 available for distribution. The Troasurer does not cay, as heought to do, that he has made deductions under the Financial Arrangements Act, so as to leave only the amount spoken of. What I want to point put to your Honors is that the two statements are entirely inconsistent. : . : His Honor Mr Justice Johnston—l think, Mr Joynt, that at this stage of the proceedings it would perhaps be convenient to adjourn until to-morrow. We will now adjourn until half-past 10 to-morrow morning.

Pbidat, Sbptbmbeh 13,

The Court resumed at 10.30 a.m. ; Mr Joynt—Before commencing my argument where I left off lost evening, I wish to refer back to some portion of my learned friend's argument. Hie Honor Mr Justice Johnston—Very well Mr Joynt. Mr Attorney, I should like to ask you whether you intend to take the point of the insufficiency of evidence of demand and refusal. : ; The Attorney General—No, your Honor. I do not think it worth while to take that point, as it would simply mean another appeal.

Mr Joynt—The point to which I wish to refer is that to the incorporation of the Board. I said that it was not open to the Colonial Treasurer to object to tiie corporation of the Board, and I relied for that on the doctrine of estoppel. I have since found a further authority for my contention. I find by section 12 of the Public Works Act, coupled with the 84th section, sufficient to prove that the Board has corpo : rate existence. It is there stated distinctly that when works are undertaken by the Board on behalf of the county that the contract shall be under seal. I submit that no seal would be necessary unless the Board were a corporate body, and that this is sufficient to show that the Board has a corporate existence and ie recognised by statute. The section distinctly states that all contracts shall be under the seal of the Road Board. Were it unincorporated it would only be necessary to have the signature of the chairman under the Unincorporated Boarda-Aei. The 84th section also shows that the Road B>ard has power to sue. [Section quoted.} Under that section it will be seen that any Road Board has power to sue another Road Board for its proportion of any work executed by it. Thia dispoßes.of the objection of my learned friend ac to, our power to sue for the writ, and also as to his objection regarding our being a corporate body. • I now proceed to take up the argument, and submit again to the Court that the Treasurer or any officer where a duty is cast upon them by statute, are subject to viandamvt. I will now quote cases in support. [Quoted Lord Denman's judgment, Regina v Lards of the Treasury ex parte Smjthe, 41 L.J., Q. 8., 981.] The reason given for dismissing this matter was, as Lord Denman pointed out, the absence of statutory words requiring the Lords of the Treasury to do the act required. If these statutory words had been present, he would have had hit right of mandimus. I cite this case to chow that the application in every case where the mandamus wae-refused was so ref used -because ! there wae no obligation shown to exbt on the I parties to do the particular act, and: that where a statutory obligation existed, as in this case, the mandamus would be granted. ~

His Honor Mr Justice Johnston —There is' no case in which c. mandamus has been issued against an officer of. the Crown. Mr Joynt—l will refer your Honor the case of the Queen's dowry, which seems to be on all fours with the case now before the Court. [Case cited—2o ~L. J., 305.] In the case of the Queen v the Commissioners of Woods and Forests, in re Budge, the distinction was that the Commissioners were acting under statute, and that, though not in such a position as eerrants of the Crown that a m a nda mvs would not lie against them. I now come to later cases, in which it has been: held that the Lords of the Treasury are liable to mandamus, provided that a distinct obligation is thrown upon them by statute to do certain duty not arising out of their office or incidental to it. ,

JHis Honor Mr Justice Johnston—The modus operandi is by the political head of the Government issuing a warrant which is endorsed by the Commissioner of Audit. It might be argued that though the statute you rely on eaye that the Treasurer shall pay over totbeKoad Boards the balance remaining,, it may mean only that he ie entitled to pay, and" that us der the present system he is presented from - doing co, in which case a mandattus wjuld not lie.

■ Mr Joynt—The point 1 am dealing with now L- that the officers of the Crowtx are Ij»bk to vdtndamu* when the duty is cast"; upon them by statute. Thia principle ii found running through the English cases, and I canrot find it any where stated that » mandavws will not Hβ against the Larde of the Treasury, or any other Ministerial officers,

where statutory obligation rate upon them to perform come duty. ; ■..- • . > Hi». HonorMr Justice Johnsloa— it not be when it is severed from'the"ol3inary

Ministerial duty? Mr Joynfc—l shall contend that under the statute here it does pot arise in the ordinary course of Ministerial duties or office, as as in the American authorities quoted by my my learned friend. [Case cited, Q. t. Prince. L.B. 6, Q.B. 411.] I cite this case, ac it is valuable principally for the dictum of Mr Justice Blackburn, which is referred to with approbation by the Privy Council during the present year, in a case which i« also cited. This was a case in which, the commissioners for investigating corrupt practices at elections refused to grant under statute certificates to witnesses who had been compelled to five evidence which might criminate themselves. [Cited judgment of Blackburn J.] In this it was held that the Court had a right to review the decision of the commissioners, and therefore that a mandamus should issue, whioh was done. That principle was followed out in the case cited by mc when moving for the rule—the King v. the Lords of the Treasury, A. and B.—and also relied upon by my learned friend to show that a mandamus will not lie on the Lords of the Treasury. I will show that it will do co if there ia a statutory obligation on the Lords of the Treasury to do something, and a legal right on the part of another party to require that this obligation shall be fulfilled. j/Jase cited 41 L.J. 183.] The obligation in thiee case was lees strong than in the Financial Arrangements Act. Then there is a case against the Master in Equity in Victoria, in which it was held that as an officer of the Crown receiving revenue a mandamus would lie. [Judgment of Privy Council in re Field read.] I cite this case because it is there laid down that being a revenue officer of the Crown would not prevent a mandamut issuing, if a statutory obligation jo-ex-istent with a right on the part of some other party to demand the fulfilment of this obligation. I submit, on the~review of all the cases decided by the Courts of England, that where a statutory duty is cast on any officer a mandamus will issue.

His Honor Mr Justice Johnston—But he most be dealing with this money ac the money of the Crown. Mr Joynt—l submit that he is only cueto? dian of a certain fund for the benefit of certain persons. His Honor Mr Juetice Johnston —Hβ is custodian of a fund which he ie empowered to pay, you will not say he is entitled to pay, without warrant.

iMr Joynt—l have not arrived at that yet. He is sufficiently disassociated from what thy learned friend says is his political character. Nowhere in New Zealand is it said that the Colonial Treasurer should not be sued. ' I contend that where a public officer is required by statute to do a certain thing that manda-nus is the only way. • His Honor Mr Justice Johnston—Would not a petition of right lie ? ■Mr Joynt—No; I submit not. No petition of right would lie in a case where a statutory obligation is cast on an officer only. . It would lie against the Crown. My contention is not a proceeding againet the Crown, but against an officer who is required by statute to perform certain duties for the benefit of certain

persons. ; His Honor Mr Justice Johnston—lf there i$ any other remedy, you have' no right to a mandamus.

' Mr Joynt—But there is no other remedy. If a petition of right would lie, there would be no mandamus, because it would be suing the Crown, and my contention is that we are not suing the Crown, as it ia no longer money of the Crown, whatever the system may be of getting it out of the Treasury. His Honor Mr Justice Johnston—lf you can show that it is no longer money of the Crowu, then yon must show the reason for the judgment in - the case of the King v. Lords of the Treasury. ,

Mr Joynt—My contention is, that if I can point to this money as money which a duty has been cast upon the Treasurer by statute to pay over to the Boad Boards, then the Legislature has imposed a duty upon the Treasurer which he can carry out. -

: Hie Honor Mr Justice Johnston—lβ it not thus —that it is the duty of the Treasurer, when the proper time comes, to -pay over, but that the system now in force may have cast a political duty upon him ? . " ■

Mr Joynt—The statute says that the Treasurer shall issue and pay. All that we ask the Court to do is to issue a mandamus calling upon him to do what the law says; under the circumstances he shall do. If he replies that the Governor refuses to sign the warrant, that will be an answer. We have no right to expect that the Governor will do an illegal act. If the mandamus issues, we have a right to suppose that the Governor will do what he can to make the work of the Treasurer effectual. ' ■

His Honor Mr Justice Johnston—But will not that be bringing what I may call the artillery of the Court into force on the Governor.

Mr Joynt-r-No. Perhaps it might be a moral arrangement. I wish to point out that, the Colonial Treasurer oould at once say that the Governor refused to issue his warrant, and this would be a conclusive answer to the • mandamus. If the Treasurer had taken the necessary steps to pay this money, and was prevented by the Governor, that would be a good answer. His Honor Mr Justice Williams —Does not the Governor take the first step ? Does he not issue his warrant before the Treasurer pays the money ? Mr Joynt—Yes, but the Governor does not act on impulse. Mr Justice Williams—No, but on the requisition of his responsible Ministers, which is just the point. Hie Honor Mr Justice Johnston —How is it done, Mr Attorney ? The Attorney-General—The requisition is signed by two Ministers. Mr Joynt—The Treasurer is not yet asked to pay the money. It is time enough for him to say he cannot when the Governor refuses to issue his warrant. It is premature in us to think that the Governor, will not issue his warrant. I submit to the Court that the Legislature meant something by the words "shall issue," end that the Treasurer is bound to do all that he is called upon to do. His Honor Mr Justice Johnston—But would not that be interfering with the executive duties of the Government ? '

-Mr Joynt—l submit not. The Court is bound to act on the statutes which are in force. They cannot go beyond the statute. ; Hie Honor Mr Justice Williams —Your doctrine might apply if the Governor issued hie warrant and the "Treasurer refused to pay the money. >Mr Joynt—l submit that the Court should issue the man da mnt and leave the Treasurer to make a return thereto that the Governor will not issue hie warrant. The mandamus only calls on the Treasurer to fulfil a statutory duty cast upon him, and the Treasurer can in reply' Vay'that he is not able to obey the viandamut, because the Governor will not issue his warrant. It is premature for the Court to assume that the Governor will not issue his warrant if a mandamus is directed to the Treasurer. The Court has only to issue a mandamut to compel the fulfilment of a statutory duty, leaving it to the officer to make a return that he is not able to comply. Aβ to the point raised by my learned friend that a mandamtu cannot issue without being effectual, it ie opposed to the doctrine laid down in the case of the Commissioner* of Woode and Foreete. His Honor Mr Justice Johnston —There is well-defined doctrine that the Court will not issue a writ which will be a mere bmtum fulmen. ■ Mr Joynt —But we carnot sey that in this Case until the return is made, that tbe writ, will not be effectual. The issue of the writ may have the effect of the Governor iwuing his warriUit. ■ * His Honor Mr Justice Johnston—But will not that be compelling the Governor to issue bis other words, a mandamus against the Crown ? Mr joynt—There is nothing to show that the Governor has been aeked to issue his warrant at aIL The Treasurer only says that it will be rain and fruitless. Mr Billance says that on the 21st August no warrant was issued by the Governor. Wβ ere not asking the Court to issue a mandamus for the sake of the'return, but we cay that until the issue has been made we don't know that the GoTernor will not iesne hi* warrant, but we] simply ask the Court by law to compel the j (Treasurer to carry into effect the statutory j Obligations imposed upon him. Hi* Honor Mr Justice Johnston —Iβ it not a fallacy toeay that the Colonial Treasurer, has more control over the funds of the public tfcan any one else? It becomes bis duty to piy over the money when the primary part of the doty has been done. . Mr Joyii—l agree with this, but I »T that

his should bmt- over -this money under the statute. ! Hie Honor Mr Justice Johnston—But the Treasurer is part of the responsible Ministry, and the first step towards getting public money is the political action of the Executive Government. Fnder the advice of his Executive the Governor issues his warrant, and the Treasurer, who is a member of the Executive, has specific instructions for carrying out his instructions forthwith. The point is, whether the statute so disassociates the i

Treasurer from hia political functions as to make him open to the operation of the principle contended for by yon. Mr Joynt -In this case one statute save no money shall be taken out of the Treasury unless the warrant of the Governor is issued.

Another statute says that a certain amount of money shall be issued and paid • to Road Boards. And if the Treasurer saye that no warrant has been issued from the Governor, that is a sufficient answer to the mandamus. His Honor Mr Justice Johnston—ls it not a matter for you to aver that the Governor hts issued a warrant, thus giving you ground for a mandamus ? : Mr Joynt No, it is for them to say that there is a difficulty in the way, not for mc. A good return to the writ would be that the Governor would not issue his warrant. For these reasons I* submit that the rule must be made absolute. His Honor Mr Justice Johnston delivered judgment as follows:— This case has been ably and elaborately argued before us; but notwithstanding its great public importance, we do not feel it our duty to postpone our judgment, as we entertain no substantial doubt as to the main question raised, and we 84-e aware that cur decision may be reviewed without much delay. It will be unnecessary for mc to deal with some of the main points in the _ case, inasmuch as Mr Joynt ia his forcible and exhaustive argument has failed to convince us that the case is a proper one for a mandamus. I think that it has not been made out that such a duty has devolved upon the Colonial Treasurer, and that he has been guilty of fluoh a refusal to perform it, as would render him liable to a mandamus, or that a mandamus, if issued, would necessarily procure for the prosecutors the relief which they desire. In considering the position and ' the duty of the Colonial Treasurer, we must not look only at the Financial Arrangements Act, 1876,' sees. 31, s.s. (4), in whioh Mr Joynt places his main reliance ; but we must take notice of statutory machinery by which moneys whioh form part of the revenue are transmitted to their ultimate destination, according to the appropriations of the Legislature. Now, it appears first, that' the Colonial Treasurer is recognised by statute as a ! responsible Minister of the Crown, which, of course, means that he is a high political officer, one of the advisers of the Governor, responsible to Parliament, and that by statute various duties are cast upon him of an exeoutive or administrative nature ; but it appears, as a matter both of fact and law, that he has not, and is nofc entitled to, the actual control and custody of her Majesty's revenue for the colony. It is true that the Financial Arrangements Act, 1876, provides that the Colonial Treasurer shall issue and pay to Road Boards the share of certain moneys allotted to them in a certain manner under statutory provisions; and this enactment no doubt casts upon him a duty, as it vests him with the power to issue such moneys, when' they are issuable or payable. Had that statutory provision stood alone, ifc seems to mc the Treasurer would have been unable to take advantage of its povrere, unless there had been some other provision to enable him to reach and get possession of the portion of the revenue out or which he was to issue and pay their quota to the different Boards. But we must look upon this enactment as assuming that his duty to issue and pay was to arise only, when by means of the statutory mstcbinery already in existence, it became possible for him to affect the revenue by issuing and paying, that is, when he had received a warrant from the Governor and procured the sanction of the Commissioners of Audit. I think -this single proposition— viz., '-Hhat itis-nofc shown that the power and duty ,of the ( Colonial Treasurer; under the Financial Arrangements Act had yet accrued in this particular case," is a sufficient answer to the rule nisi, and I cannot assent to the suggestion of the learned counsel for. the prosecution, that the non-issuing of the warrant would be a good answer on a return to the mandamus, bnt that the issuing of it is not a condition precedent to the right to. a vidnddmus, even if the position of the Treasurer was such ac to make him liable to do it at all. Again, it seems to mc that the learned counsel has failed in making out that the duty imposed upon the Treasurer by the Statute was one which was irrespective of his political character, or of his duties as what may, without disrespect, be sailed " a servant of the Crown," discharging functions for the. Crown in dealing with its revenue,according to the flat of the Legidat ure; and I do not think that the distinction of the characters of different duties, upon which it. has been attempted to support the supposed decision in Reg. v. the Lords of the Treasury (4 Ad, and B.) can be applied to the case. Still less c*n the doctrine of severability of functions alluded to in the American decisions be deemed applicable to the circumstances of this case. I am of apinion, therefore, that the Colonial Treasurer in respect of this mat-, ter is not a person against whom a mandamus _ will lie under such circumstances; and that if he were, then no breach of his statutory duty is shown upon the affidavits. And, moreover, I think that the mandamus would be hrwtem fulnien, and ought not to be granted with the view merely of inducing the Governor to take the necessary preliminary of issuing a warrant. With regard to the question of costs, we have no means of knowing what might be called the real merits of the case, but decide on a bare question of law; we feel bound, in the absence of a waiver of costs on the part of the Government, to discharge the rule with costs, as it was moved with costs. : His Honor M* Justice . Williams said— I concur. I think that the cases establish two principles. First—that when a duty is to be performed by. the Crown, or by servants of the Crown who are responsible to the Crown for the performance of that duty, the Court has no jurisdiction to issue a mandamus ; and secondly, that where there" is a specific duty cast by statute on a particular individual or on the holder of an office, and a corresponding right is also created by statute in favor of any person, then a mandamus will i sue, although the individual on whom the duty is imposed may be a servant of the Crown. : We have to decide on the construe , ion of the Financial Arrangements Act, 1876, read with the statutes which regulate the mode of dealing with pablic moneys in New Zealand, whichpf_these .two. principles apply to.tVe present case. The fourth section of that Aot provides that a separate account shall be kept of the land fund in each district, which shall be charged with certain sums mentioned. No duty is imposed on any particular person to carry out the provisions of this section, and i the burden of carrying them out falls on the Executive Government generally, or in other words on the Crown, and clearly no mandamus would lie to compel any person to mate un the account or charge the sums mentioned in this section. The 9th section

surer except in pursuance of a warrant or warrants of the Governor addressed to the Colonial Treasurer. Beading, therefore, the two Aote together, it seems to mc that no duty in respect of which" a mandamus could issue is imposed by the Financial Arrangements Act upon the Colonial Treasurer until the Governor has issued his warrant for payment of the money. To show that such a warrant has issued is clearly, I think, a condition precedent to any right the prosecutor may have to a mandamus, Mr Joynt gave notice of appeal.

of the Act provides that the balance of the land fund of each district, after payment of the charges mentioned in section 4, shall be disposed of as therein mentioned, and, subject to certain repayments, shall be div.ded anwngst the counties in the district. Here again the same remark applies. The Crown is to divide the money among the counties and no mandamus would lie to compel an obedience to this section. The 31st section provides that when th 9 whole of the Counties Act has not been brought into force in any county, the moneys made payable to tit county shall be divided among the Road District, in the county in certain proportions, and the 4th subsection enacts that the Crown to maie out a oalance, and when such balance is made out a farther duty is cast upon the Crown to take the nectary to pay it over to the Road Boards. The duty im& upon the Colonial Treasurer »V I upon him, subject to the provisions of the etatutee which regulate the Lne an* payment of public moneys gene•ccerding to the of law, ttie time arrives for him to do his part, he ie to dp it I m the manner provided by the .statute,, and ! issue and pay the money to the Road Boards, If, however, my preliminarjr gtepe are re qaired by law to set the machinery,in the duty of the Treasurer to pay clearly does not arise Iffl they nsre been taken; "Now, the 39th section or fha Pobnc Revmues Act, 1567, enacts that no part of her. Majesty's rereliucß shaH be issued bj the Coloaiai Irea-'

GEEALDINE BACES. ■ The following are the weighte for the above:-— • HTTBTITiTt BACH. ; -etib. • Tβ Whetumarama 12 0 Agent - 11 9 Eclipee H * Theodore ... 11 0 Ivsnhoe 10 10 : Harleqnin... 10 7 Canconball . . 10 8 . Paleha '.. ... 10 0 Deceiver 9 12 Clochette {l** e Kaikanui Lass)... 9 5 ■ Sparrowteil Qahs Enfield) ... 9 0 BCBLICAXS* PTJESK. Maritana ... ... 9 7 ( Harlequin... ... ... ... ~9- 4 : Tβ Wh*t»nuufama 9 2 Bh» Peter ... ... ... 9 0 Edip«s ... ,. 8 10 I Ifliy Ellen • ••• 8 4 Prudence. — -■- 8 0 ! Seven Bells ■ 7 0 , . - SEBAIiDIKB CUPMaritana ... | * ; Harkqaw... — » ■ \ ; Te Whetr»n»nHH» ... •-- ° - 1 * Agent ... ... ...- 8 * Lidv Ellen ... - • s ° Praaeiice ... ... ... •- 7 12 i.Innhfl*. - • 7 ° J Hon. Secretary.