PREROGATIVE OF CROWN

Press, Volume LXIX, Issue 21034, 9 December 1933, Page 7

PREROGATIVE OF CROWN

RIGHTS OF EDUCATION BOARDS DECISION OF SUPREME COURT That education boards are not entitled to the prerogatives of the Crown and are consequently bound by the heavy traffic regulations was the effect of the reserved judgment given in the Supreme Court yesterday afternoon by his Honour, Mr Jusice Ostler, in the originating summons, the City of Christchurch v. the Canterbury Education Board. When the case was heard, Mr R. J. Loughnan appeared for plaintiff and Mr W. R. Lascelles for defendant. The question for the court to decide was whether the obligations created by the heavy motor-vehicle regulations applied to the heavy motor-vehicles owned and used by the defendant board. "The contention on behalf of defendant board is that it is really a department of State, either a servant or a statutory agent of the Crown, and as such entitled to all the prerogatives of the Crown, including the prerogative of not being bound by a statute unless so provided in the statute," his Honour stated in his judgment. "In order to determine this question it is necessary to refer shortly to the history of education boards in New Zealand. In the uays of provincial government each province established an education board, and vested in it endowments and land for the purposes of schools and powers of management. Upon the abolition of the provinces an Education Boards Act was passed in 1876 as a temporary measure. It created education districts from the various provincial districts, and constituted an education board for each district, to hold offi:e until December 1, 1877. It is unnecessary to set out the powers and functions of these boards. The act was obviously intended to tide over the period until comprehensive education legislation could be passed. This was done by the well-known Education Act, 1877, the main principles of which are still the law of New Zealand. The present act is the Education Act, 1914, which is built on the frame of the act of 1877." Continuing, his Honour dealt with the provisions of the act and quoted section 24 which provides that education boards are bodies corporate. . Educational Administration. "It will be seen that tbe statute creates a department of State under the control of a Minister of the Crown," his Honour continued. "Under the department there is in each education district an education board responsible to the department for the proper exercise of its powers and duties; and under each board are a number of school committees, each responsible to the board for the carrying on of its statutory functions in its own school district. The school committees are not incorporated, but education boards are by the statute created corporate bodies with perpetual succession and a common seal, and it is expressly provided that they may do and suffer all such things as bodies corporate may do and suffer. This has been the legal status of education boards ever since the passing of the act of 1877. In my opinion, if the legislature had intended that education boards should possess the prerogatives and exemptions of the Crown it would have used language very different from the words used in section 24. I agree with the judgment of Mr Justice Blair in McCallum v. Official Assignee of Sagar and Lusty (1928. N.Z.L.R. 292), that the effect of section 24 is to constitute an education board a statutory corporate body separate and distinct from the Crown, so that it cannot claim any of the privileges of the Crown." Authorities in Support.. Continuing, his Honour referred to several authorities in support and stated that one of the prerogatives of the Crown was that a writ of mandamus could not be against the Crown or its officers or servants, but he could see no reason to doubt that a writ of mandamus could be issued against an education board if it declined to perform a mandatory statutory duty, and the court had on several occasions issued injunctions against such boards. "No doubt land vested in an education board and used for the purpose of a school is considered to be Crown land and therefore exempt from rates," his Honour stated later in his judgment, "but it does not follow that because an education board may hold land which is Crown land it is a servant or agent of the Crown so as to be entitled in the exercise of all its functions to the privileges of the Crown. The property of education boards except lands used for school purposes has always been rateable: see section 158 of the Education Act, 1914. Under that section land used for education board offices was subject to rates. If such boards had been intended to be servants of the Crown this would not have been so. "If education boards are entitled to the prerogatives of the Crown school committees must be equally so entitled, for part of the authority for the management of State schools has been delegated to such committees. A claim by a school committee that it was not subject to the statute law unless the Crown was named would be both novel and startling. Moreover, if education boards are entitled to the exemptions of the Cro\vn, harbour boards, hospital boards, and the numerous other boards established by legislation for the carrying out of public functions must be equally so entitled, but the tendency of the courts in recent years in England has been to restrict the doctrine, and to distinguish between government functions and public functions. Merc Fact Not Conclusive. "The mere fact that education boards are incorporated by our legislation is not in itself conclusive against its claim. The Postmaster-General was by the effect of the statute incorporated in Bainbridge v. The Post-master-General (1906 1 K.B. 178), but it was held nevertheless that he could not be sued for a tort. In that case Collins, M. R., expressly held that incorporation was not the test of liability. But where the legislature has not only incorporated education boards, but has expressly provided | that they can do and suffer all things which can be done and suffered by bodies corporate, and where in addition statutory duties and powers and discretions are vested in such boards, I think .it is made sufficiently plain that they are not the servants or agents of the Crown, or in consimili casu, and are therefore not entitled to claim the prerogatives of the Crown. i "Having. come to this conclusion, it becomes unnecessary to consider the other point which was argued. In my opinion, for the reasons stated, the obligations created by the Heavy Traffic Regulations apply to the defendant board and the heavy motor vehicles owned by it. I assume that education boards have power to own heavy motor vehicles, for that point has not been argued before me. The defendant board will have to pay the costs of the case, which I fix at £7 7s and disbursements."