SUPREME COURT.

Hawke's Bay Tribune, Volume II, Issue 168, 1 July 1912, Page 6

SUPREME COURT.

NAPIER. CIVIL SITTING. (Before the Chief Justice, Sir Robert Stout.) NAPIER BOROUGH COUNCIL v. C. C. McDOLGALL. This was a case in which the Napier Borough Council sought to recover from C. C. McDougall the sum of 4/2 for rates alleged to be due. Mr. Murdoch appeared for the plaintiff Council, and Mr. Lusk for the defendant. The case was a test case to show whether or not a special rate levied by the Napier Borough Council could rightly be levied over a portion of Napier South merged in the borough. The poll for the loan of £134,000 for theatre, tramways, sewerage, etc., was taken on June 30, 1909, before the merged area became a portion of the borough. The poll was in favour of the loan, and the special order striking the rate of 16jd, was struck on May 4, 1910, one month after the merged portion became a portion of the borough. The borough held that the special rate was struck over the whole of the borough as then constituted, and the invalidity of the rate could not be questioned. The race could not be quashed partially and must hold good to its full extent. The rate was made at a time when the defendant’s property was in the Borough of Napier. By section 67 of the Municipal Corporations Act no special order could be quashed unless proceedings were taken within three months. Defendant had stood by and taken no action. It did not lie with him now to come and say the special rate was bad. Boiled down the argument was that it was too late now to attack the order. lathe case of exemption the onus of proof was upon the defendant. Section 7 of the Local Bodies Loans Act proved that the consent of the ratepayers was in essence to the raising of the loan and was not an ingredient in the making of the rate. The procedure in making a rate was set forth in Section 17 of the Loans to Local Bodies Act 1908. The Council would then proceed under Section 49 of the Rating Act. This procedure gave in two ways —by the advertising of the special order and the deposit of the rate book for inspection—opportunity for the defendant to object. He did not do so. The ratepayers of Napier South came into the borough of their own volition, knowing what the liabilities were

His Honour suggested that Mr. Murdock’s strongest point was that as the rate had been struck over the whole of the borough had they power to differentiate. Mr. Murdock said that was so. They could not leave out the added area unless a special rating area had been provided for. Mr. Lusk said generally that his contribution was that the special order referring to the rate was intended to refer to the borough of Napier as constituted at the time when the poll of ratepayers was taken. The words ’‘borough of Napier" in the Special Order coula only be meant to follow the expressed wish of the ratepayers. The additional area was brought in under Section 118 of the Municipal Corporations Act and Section 128 made it plain that no rate could be struck on an extended area, and it was clear the a*ca had been brought in since the poll. The merged area could reap no benefit from unexpended loan money. He submitted that it was perfectly clear that the act contemplated that in all cases a spec ; al loan was subject to the ratepayers' consent, otherwise there would be no loan. This was made plain by Section 12 of the Loans to Local Bodies Act. By Section 7 st was plain that "district” meant the district affected by the loan, and the borough as then constituted was to have the benefit of the loan. A special rate could only affect the district which eras the subject of a poll and the ratepayers who had given assent. How could it be argued that a delav of 15 months in raising the loan made the ratepayers in the added area liable to the rate! Die proposals put before the ratepayer? were just as much a part of the procedure as the special order. The council could only follow the authority of the ratepayers. If they did not do ibis th< y might not only strike a rate upon an area not in tin borough at ..the time, but also give a different security than tint which was set forth in the loan proposals. It was proposed to strike a rate of ttj';d met the "Borough of Napier” and this must I’.av.- been ealeulatco before Napier South came m. Ir such eases a large additional area would make the rate a ridiculous cveo-vs rge. His main contention \.„3 that the i ai ang of the loan and

the striking of the rate must be taken as one proceeding and the council could only act on the authority of the poll. All ratepayers in the area rated had a right to vote. His Honour suggested that the ratepayers might have known what loans were being raised and that they were to become liable.

Mr. Lusk replied that they did know of the loans and the security offered, but they did not anticipate that the council would, do more than authorised by the ratepayers. They had a right to think the poll would be what the council would proceed one. The resolution passed must have meant the “Borough of Na pier’’ as constituted at the time of raising the loan. His Honour delivered judgment at 2.30. He held the validity of the special order could not be contested and the borough could proceed to collect the rates. Costs £5 5- and disbursements were allowed. JUDGMENTS. CLAIM FOR RATES.

The Chief Justice gave judgment this morning in the case of the Patangata County Council v. Fanny White and others, claim for £282 13.10, rates alleged to be due. After reviewing the evidence His Honour said that if a person is rightly on the roll as occupier sells or otherwise transfers his property he remains liable until he gives notice of his transfer and the name of the transferee. The defendants neither sold nor otherwise transferred their property. I am therefore not convinced by the enquiries and argument of Mr. Murdock that the mere fact that the defendant’s name is on the roll is evidence that they arc occupiers or ratable. Judgment was for the defendants with costs according to scale with anj’ disbursments.

INTERPRETATION OF A WILL.

In the case, Hunt v. O’Brien, interpretation of a will, His Honour held that the property subject to the will should be divided among the family and could not be claimed absolutely by the daughter, Margaret.