THE POWER OF RESIDENT MAGISTRATES.

Hawke's Bay Times, Volume III, Issue 176, 27 May 1864, Page 5 (Supplement)

THE POWER OF RESIDENT MAGISTRATES.

The following Judgment has recently been delivered out by His Mr. Justice Richmond : Beabsos, Appellant; Caßrk (Chairman of Town

Board of Invercargill), Respondent. This is a case stated under the 3rd section of the “Resident Magistrates Jurisdiction Extension Act, 1863,” on appeal from a judgment of one of the Resident Magistrates at Invercargill. The case states for the opinion of this Court the following questions:— I. Whether the copies of the two Ordinances under which the plaintiff brought his action, namely, “The Dunedin Roads and Streets Ordinance, 1855,” and the Port Chakners and Invercargill Town Board Ordinance, 1859,” not purporting, as provided by the sixth section of “ The Official Documents Evidence Act, 1860,” to be printed under the authority of the Provincial Government of Dunedin, these Ordinances could be received in evidence by the Magistrate without any proof being given that those copies were so printed ?

11. Whether the statement of the Town Clerk on oath that he was Clerk to the Board, without evidence being given that the minutes of the Board previous to and at the time of his appointment were regularly kept, so as to shew that he was duly and regularly appointed, was sufficient legal proof of the Clerk’s appointment ?

111. The 13th section of “ The Dunedin Roads and Streets Ordinance, 1855,” being as follows, to wit, —13. “ Every such assessment shall be taken into consideration at a general meeting of the Town Board convened for that purpose, whereof public notice shall have been given by two several advertisements in a newspaper, or otherwise as the Board shall direct, and the Assessment shall he altered or amended as the Town Board shall think fit, and thereafter shall he signed hg three Members of the Board or their Chairman.” Whether the plaintiff, having put in the Assessment paper without any signature whatever attached, and having admitted that it had not been signed at the time ; the requirements of the said Ordinance have been complied with ? And •whether the subsequent proceedings taken upon that informal unsigned document are not irregular and void ?

IV. A copy of the Assessment notice having been put in evidence as a copy of notice served on defendant, whether that copy was receivable in evidence—seeing that the only evidence produced was that of the messenger, who averred that he

had not compared the original and copy before service : that to the best of his knowledge and belief, a duplicate had been kept ; that he did not know when and where he had served the notice ?

V. Whether His Worship was right in ruling that under the 13th section of the Resident Magistrates Ordinance, 10 Victoria, Session ATI, No. XVI, he could rule against (bo defendant and for the plaintiff, on the above four points on equitable grounds, or ou equity and good conscience, and receive the aforesaid evidence,, although not strictly legal ?

VI. Whether the “ Dunedin Roads and Streets Ordinance, 1855,” and the “Port Chalmers and Invercargill Town Board Ordinance, 1859,” being repealed by the second section of the Invercargill Town Board Ordinance, 1863, the plaintiff is entitled to recover under the said two repealed Ordinances ?

I shall first deal with the fifth question ; as upon the solution which it may receive the answers to all the othei\ questions may obviously depend ; and in replying to this question 1 shall consider what are the powers of the Resident Magistrate’s Court—(l.) In regard to the decision of cases; (2) In regard to the reception of evidence.

The Resident Magistrate’s Court was instituted by the Resident Magistrate’s Courts Ordinance, passed in 1816. The material provision of the Ordinance for the present purpose is the 13th Section, which enacts, that the Resident Magistrate “ shall have full power and authority to give such judgments between the parties as he shall find to stand with Equity and Good Conscience, and to prescribe such terms and conditions as to the time and mode of satisfying such judgment as he shall deem just and reasonable.” It was contended on behalf of the appellant that the words just cited confer on the magistrate a combined legal and equitable jurisdiction, similar in kind to that exercised by this Court, which is both a Court of Law and a Court of Equity ; and that except as regards the evidence admissible in the Resident Magistrate’s Court, (as to which it is admitted that those Courts have peculiar powers), the Resident Magistrates are bound by the same strict principles as prevail in this Court.

1 am, however, of opinion that this is not the effect of the Ordinance. The language of the 13th section is not unusual in English statute law. The same, or similar, language is used in the English Acts of Parliament establishing Local Courts of Requests. It happens to be the very language of the Act, 22 Geo., c. 47, establishing the Southwark Court of Requests. By section 4 of that Act the Commissioners of the Court are empowered “to make such acts, order or orders, decrees, judgments, and proceedings between snch party or parties, plaintiffs, and his, her, or their debtor or debtors, defendants, touching such debts, not exceeding the sum of 405., in question before them, as they shall find to stand with Equity and Good Conscience.” Tins enactment received a judicial interpretation in the case of Scott v. Bye—2 Bingham 344, which was upon a writ of false judgment, sued out of the Court of Common Pleas for the reversal of a judgment of the Southwark Court of Requests. It was held that the writ did not lie, and that there could be no appeal from such a court to a court of common law. In giving judgment, C. J. Rest said, “Judgment is to be according to equity and good conscience, that is, such as plain men, ignorant of the rules of law, which the judges of that court must be, shall think just. If the expense and delay that must be occasioned by an appeal to the common pleas did not entirely defeat the object of the Legislature in creating Courts of Requests, can a court, the decisions of which are wisely subjected to fixed rules, be a proper tribunal to correct the

proceedings of courts where Judges are left to the guidance of their own arbitrary discretion. ' The reasonings of Lord Holt in Dr. Groenvclt’s ease (Groenvelt v. Burwell, Walker 263—Carthew 421) applies to this. He says, that a decision of the College of Physicians cannot be examined upon a writ of error, because the College of Physicians does not proceed on the principles of common law.”

Tu the same case of Scott v. Bye, Mr. Justice Burrough said “the words equity and good conscience imply a proceeding different from that of common law, and one of which we are not competent to form a judgment. Courts of conscience have existed for 200 years, and no such writ as the present has ever issued to them before.” The case of Scott v. Bye is a direct authority of the interpretation of the L3lh section of the R. M. Ordinance, which I feel bound to follow: and I bold accordingly that by its original constitution the Rolls Court was not absolutely bound to adjudicate according to the principles which are observed in the Superior Courts, whether of Law or Equity. The question then arises, whether the original constitution of the Court has been affected by the enactment of the 3rd section of the act of 1862, under which this appeal is made. The enactment is, that wherever the sum claimed exceeds £2O (or by leave of a Resident Magistrate where the sum exceeds £5, but does not exceed £2O), either party deeming himself aggrieved by the decision of the Resident Magistrate in point of law, may, giving the security required by the Act for the execution of the final orders, appeal to the Supreme Court upon a special case. Now, undoubtedly, in the creation of an appellate jurisdiction it is implied that the court of appeal and inferior court proceed. quoad the subject of appeal, on common principles. There can be no such tiring, for instance, as an appeal from a court of law to a court of equity, or vice versa ; still less from a court of conscience, acting as such, to a court of law. Hence it seems to follow that the Legislature must by this enactment have contemplated, either that the Supreme Court, in their appeals, should adjudicate as a court of conscience ; or, that the Resident Magistrate’s Court should in the first instance, decide according to the principles observed in the Supreme Court. The former branch of this alteration may be at once discarded as absurd ; contrary to first principles, and contrary also to the express terms of the section ; which gives the appeal on points of law and not on sucli questions (whatever they may be) as are enter tained is so-called courts of conscience. Therefore, I conclude that the Legislature must have contemplated that the Resident Magistrates could, in cases coming within the Act, decide, upon legal grounds—in which general terra “ legal” I include technical equity. Tliis conclusion, it will be seen, falls short of what appellant mist contend for, namely, that the Resident Magistrate can no longer in any ease act as a court of conscience Hut. as the Act of 1862 does not purport to repeal tin* 13th section of the Resident Magi-1 rates Ordinance, 1 ought; not to decide, but the Resident Magistrates civil jurisdiction, as established by the Ordinance in 1864, has been fundamentally a’Vtvd, unless the Act of 1862 is clearly inconsi I. ■■ : with the Ordinance. 1 am. however, of . a- n -that the Act and the Ordinance may stand ; anther. When (lie practical course of lit i_.ii lon in The Resident Magistrate’s or any other court comes to be considered, it is seen that in many cases (he moral merits of the litigants are equal ; in many others, purolj' ethical considerations can have no conceivable bearing on the decision. The dispute turns in all such cases on a dry point of law, moral considerations being absent, or in equilibria. In such cases the magistrate must of necessity decide according to his view of (ho legal rights of the parties ; and so deciding, he ought, of course, to state the ground of his decision. Now, it seems to me fhat these are (lie cases contemplated by the Act of 1862. In these cases it may happen, notwithstanding the nature of the court, that a litigant before the R..M. may, as the act expresses it, feel himself aggrieved by the decisions in point of law. My opinion, therefore, is that the Act of 1862 does not change the constitution of these courts as courts of conscience, but contemplates that, in certain eases the Magistrate ought not to recur, and will not recur, to his power of deciding on grounds of conscience, but will base his decision entirely upon a point of technical law or equity, and that in such cases, and such only, the Act gives an appeal to this court. I reply, therefore, to so much of the olh query as relates to the magistrate's power of ultimate decision, that, in my opinion, he might lawfully have decided the case on grounds of equity and good conscience, which would have barred this appeal. I cannot, however, upon this case a.-sume that he did so decide. It appears, on the contrary, that tlie judgment below was (with much greater propriety, 1 may say) based upon the magistrate’s opinion on the legal points stated in the 3rd and 6th questions. And here, before I go further, lest I bo understood as recommending to magistrates who have not received a legal education that they should attempt a highly technical way of disposing of (he ! cases before them, I will add to what I have said i that it will commonly be safest for them to trust to a broad common sense view of the questions they j have to decide. Let them beware of supposing i that any proposition which, upon a deliberate con- ; siuefaiion, appears shocking to common sense, can ' be the result of legal doctrine. Happily, m our day, the law, if not yet exactly “ the perfection of ! reason,” will generally warrant the conclusions of ; an accurate thinker, even though he be without | the advantage of much technical knowledge. | 1 now pass on to consider the powers of the Re- ! sident Magistrate’s Court in regard to the reception of evidence. The enactment of the 13th section of the Resident Magistrates Ordinance on the subject is as follows. “ And in the hearing of every such case the Resident Magistrate shall be at liberty to receive or require any such evidence as to him shall appear fit, whether the same shall be strictly legal evidence or not.” There can be no doubt about the meaning of this enactment, and the only possible question

is whether the Act of 1862 Ims in any way affected the original power of the Resident Magistrate’s Court, in respect to the admission of evidence. I see no reason to think that it has. It appears to me that the Act gives no appeal upon the ground of the improper admission of evidence. The natural meaning of the phrase aggrieved by the decision is aggrieved by'the final decision of the cause. Rules of evidence pertain ad Ulis decisionem; they relate to 1 the 'procedure, and do not directly affect the decision. Had it been intended to give an appeal against mere interlocutory rulings as to the admission of evidence express words would have been used, as in" the Imperial Act, 13 and 11 Tie. cap. 61, sec. 14, which gives an appeal from the County Courts to the judges of the Common Law Courts at Westminster. Provision would also have been made as in the Imperial statute, for the award of the new trial or its equivalent, a re-hearing. I reply, therefore, to so much of the sth question as relates to the Magistrate’s power to receive evidence not strictly legal, that, in my opinion he has power so to do. This altogether disposes of the sth question, and also Ist, 2nd, and 4th questions. In argument the 2ntl question was very properly given up by the appellant’s counsel : and the Ist and 4th questions it was attempted to treat as relating to the sufficiency of the proof, rather than to the admissibility of the evidence. Taking the questions in this way, it is quite plain that there is no appeal against the conclusions of the Resident Magistrate upon matters of fact. This court cannot determine quest ions of fact ; nor if it could, does the Act of 1862 embrace such questions. Xor can this court say that the finding of the Res. Magistrate is against the weight of evidence, or is unsupported by evidence ; because the court below is expressly authorized to come to conclusions upon testimony which this court does not regard at all, and which it has no scales to weigh. Before I proceed to answer the remaining, qnesfions, I may observe that the Resident Magistrates have power to receive evidence not strictly legal I see no reason why, in any case, they should base their decisions as to admissibility of evidence upon strictly legal grounds. The reasoning by which I have arrived at the conclusion that (he final decision should in some cases proceed on strictly legal grounds does not apply to the admission of evidence. Of necessity the Magistrate recurs to strict law for the decision of those numerous cases upon which moral considerations throw no certain light. But there is no necessity why, in any case, he should fetter himself by the strict law of Evidence. Rather, on the contrary, it is expedient for the sake of uniformity of procedure, that the same kind of proof which is admitted in one case should be admitted in all. Let the Magistrate, in all cases, without distinction, get at the facts as he best may by the discreet exercise of Ins powers under the Ordinance. Having got at the facts, it will then appear whether he ought or ought not to decide the action as one slricli pi ids. There remains only the 3rd and Clh questions which are actually points oflaw, on which an appeal is open. The 3rd question in substance is, whether the rate for which the defeiulent is sued is void in consequence of the assessment paper wanting the signatures required by the Dunedin Roads and Streets Ordinance, 1855. I was referred by the appellant’s counsel to the case of the Queen v. the Inhabitants of Ford ham. II .Ad,'ami Ellis 73, (S. G. 9), as affording an inference that the want of the signatures is fatal. 1 think this case is no help to the appellant’s argument, but, on (he contrary, is an authority against him. The question in (hat ca's» arose from the construction of the 2nd section of the Act to regulate Parochial assessments, G and 7 Win. 4-, e. 96. The section prescribes various formalities to be observed in making a rate, and ends with requiring signature by the overseers of a form of declaration at the font of the rate paper. The section concludes with these wonjs, “ and otherwise the said rate shall be of no force or validity.” The prescribed declaration was duly signed by the overseers, and no question arose about it in the case, but some of the forms required in the earlier part of the section had been omitted. It was not disputed that if the declaration had not been signed the rate would have been invalid, the statute being on that head clearly imperative. Tlie question was, whether the words 1 have cited making void the rate applied to the omission of any of tiie formalities mentioned in the former part of the section, or only to the omission of the signatures to the declaration. 'The court held that the words applied exclusively to (lie latter omission, and that the rate was good, notwithstanding the non-observance of (he other formalities. It was evidently taken for granted, that if the words making void the rate did not apply to I lie omission of (hose formalities which hud been neglected, the statute must be regarded quoad those formalities, as directory, merely, and not imperative. The statute being directory only, I need scarcely say that a deviation in the mode of doing the acts therein commanded from the mode prescribed by the statute, would not invalidate what was so done. Xow compliance is only fatal when the statute is imperative. One general rule of distinguishing between directory and imperative words is given by Lord Tenlerden in Rex v. Justices of Leicester, 7B and C 12, “negative words,” he says, “will make a statute imperative, words in the affirmative are directory only.” And in Pcarse v. Morrice, 2 Ad ami EH 96 (sec. 4, Law Journal, X.S., K. 8., 21) Mr. Justice Taunton gives the following additional ride for the same purpose: —“I have always understood a statute to be directory when it contains matters merely of direction : but not when those directions are followed up by an express provision that- in default of following them the instrument shall bo ‘ null and void ;’ therefore when they are so followed up it becomes a direct absolute prohibition.” The'decision in the Queen v. the Inhabitants of Fordhani, (already cited) agrees with this dictum. The enactment set out in (lie 3rd question is affirmative, not negative, and does not make void the rate for non-compliance with the formality. In accordance, therefore, with the above cited an-

tliorities, and with the case of Cole v. Green, T. 1 Scott, N.R., GB2, (S.C. 13, L.J., C.P. 30) in which a very similar provision was held to be directory only. lam of opinion that the enactment now in question is directory, and not imperative, and consequently, the omission of the signatures of the three members of the board or their chairman does not invalidate the rate.

The remaining question is, whether the repeal of the Dunedin lloads and Streets Ordinance, 1855, by the Town Board Ordinance, 1863, aifects the present proceeding. The repealing ordinance contains no saving of proceedings pending under the repealed ordinance, but it lias been agreed that I am to consider the Provincial Interpretation Ordinance, 1802, as part of this special case. The 6th section of the Interpretation Ordinance, which is anterior to the Town Board Ordinance, 1863, enacts that, “ whenever _any ordinance shall be made, repealing in whole or in part any existing law, or substituting any provision in lieu thereof, the law so repealed shall remain in force until the substituted provision shall come into operation, and such repeal shall not, without express words, affect any matter or thing commenced to be'done under the repealed law; but such mutter or tiling may be continued under the repealed law, unless the provision of the repealing Ordinance shall be adapted to such continuation.” The question is, whether this suit is a matter or tiling, or part of a matter or thing, commenced to bo done under the repealed law. The suit in itself is not a tiling commenced to be done before the repeal, but the rate sued for was made under the former law. The ultimate purpose of a rate is the levying of monies from the ratepayers. The first step is to make the rate, and every subsequent proceeding down to the time when the whole rate lias been collected, is part of one and the same matter. The levying of money by means of this rate having been commenced under the repealed law, and this suit being a continuation of the process so commenced, this suit comes within the moaning of.tho 6th section of the Interpretation Ordinance.

This appeal must therefore he dismissed with costs.