SUPREME COURT.—Friday.

New Zealand Herald, Volume I, Issue 231, 9 August 1864, Page 4

SUPREME COURT.—Friday.

IN BANCO. [Before Sir G. Alfred Arney, Chief Justice.J IN RE WARWICK. ■In this case. Mr. Wynn appeared on behalf of the provincial Government, to a rule nisi granted by his Honor the Chief Justice at hi-t sittings, to show cause" 4-why a. mandamus should wot issue against Mr. Ilazelden, the Waste Lands Commissioner, directing him to give to the applicant a land-order entitling ' him to receive free of cost, .JOO acres of land, as a i\'t ired military ollieer, in terms , of the .Auckland \\ aste Lauds Ait of 1858. Mr.| Wjnn taid that the case naturally divided jtsolf into two distinct questions: fh'stly, was tiie course taken b'.i the applicant ill issuing out- a iitrntt/anius against Mr. ilu/ulduii a pnpur way lo obtain the redrcss lie sought? and. secondly, was he one of that class ol ■ miliiaiy selticrs contenmlaled i:i clauso'Bo df-tlio I.and Jirt ? lie had been inclined at fir.-t hearing the particulars to consider that- lie : would not be justified in arguing against, the writ, on ■ the ground of.its impropriety, because, although the "Waste tands Commissioner was- in some sort an otlicer of the Qitcen, and thus exempted from the action of such a writ, still there were others of his

function's that seemed to constitute him a Ministerial o'RceY. and as such lie would be amenable to it. But the remarks of the Court oil the hearing of tin; cx parte application for a. rule nisi, had induced him to modify.:this.opinion, and he was now prepared lo contend that, this was , not.. a rolling for the exercise of tlie great .powrs of* miiii'hmus for several reasons Which he would adduce, and although lie conceived this was not tire time for 11 petition of right, there was another course open to the applicant tha.t he would ipdiiVt out in the course of his argumeii!. There ■was'tio wish whatever oil the part of the Cioverninentt'i press hardly on this indivMnhl applicant, or lo resist liis claims 011 mere toehnieal grounds. Their sole desire was that The Act, which was very loosely worded, and litid not even a preamble, should be authoritatively interpreted, so that both claimants and who had to administer the law be equally sure of their exact rights. With this view Mr. Hazeldcn had, at his instance, forwarded a letter to Mr. Warwick's solicitor, expressly waiving the right to call in question any portion of the claim, except that of the applicant's title to be styled a military oflicer within the meaning of the Act. He then proceeded to argue that a writ ought not to issue in this case on the ground that, a mandamus would not lie against the Sovereign, and consequently not against her officers. The case of W-. Carmii hel Smith against the Lords of the Treasury was cited to show that although the mannamnx had been allowed to issue, it was on the ground that the Lords had bccome the receivers of a sum granted for a specific purpose, and was, therefore, divested forJhe time of their character of King's servants. The AttorneyGeneral hud argued, not against the legal right to redress, but against, the impropriety of the remedy sought to be obtained. The present application was made indirectly against the Crown, because its e.'lect was to compel the Waste Lands Conrnitesiouor to part with the demesnes of the Crown-. His Honor said the qUestioft Vvimuined to be argued liow far the CroNvn had divested itself of its light to these deuveiues by sanctioning the various Land Acts. Mr. Wynn submitted that the Provincial Government is expressly prohibited from meddling with the lands. They are to be distributed by "the 'Waste Lands Commissioner solely, and Vile Act of .ISS.S having been confirmed by the Imperial Government he becomes On Imperial otlicer appointed to do certain things in the interest oft he Crown. Hia lion or said that the Crown was very much in the same position about the land ns about the money in the Treasury cuse, except that the act of granting a land-order could not be confirmed without the Crown grant. Mr. Wynu said that this ease being quite unprecedented no assistance in clearing it could be derived from the books, which he had searched without being able to find one quite analogous. A mandamus should put the applicant ill full possession of his rights ; but- here it did not do so, as the Commissioner being appointed by the Superintendent, and removable at liis pleasure, the present* holder of the office might be changed to-morrow, and the writ wo\ild then be inoperative against his successor —so that it really settled nothing. The Government might even, for the very purpose of trying the matter further, remove the Commissioner, and the new one might take a totally different- view of it, <iud Hot being satisfied with the certificates produced, which the Regulations require him to be, reject the claim altogether, or admitting it, and allowing the applicant to select land and settle on it, when the necessary term had been completed' th« Attorney-General of the day might still refuse to abide by the decision now come to end refuso to issue the Crown title. The whole ease would then have to be recommenced.* Another objection was that the writ, if it went at all, would compel the Waste Lands Commissioner to issue an order for acquiring land " free of cost." 'J his he could not do. because the present, practice is lo put up the land for sale at 10s. an acre, anil 1o accept Unorder as scrip, in part payment, so that it npglit prove that the purchaser would have to give his order for onlv 50 or 100 acres.

The Court observed that the meaning of the word:in the writ must be taken to be the meaning of the words in tho .Act.. Jlr. Wynn said that the Commissioner, being removable, at the pleasure of a superior oiiieer was not a Ministerial officer, but was to a certain point a judicial oflicer, because he had, as it were, to decide between the C'rov.n ami the applicant. He holds otlice under the sth section of the Waste Lands Act. Tapping, on 3/iitnluwi'x, mi* s, "Inferior oliieers cannot be compelled by minnhimrx to do an act which niiulit be rendered ineffective bv a superior oflicer. 't he j.roj er remedy against Sherilis of counties is by indictment" 'Jincases of tho Manulcau Company ami of Kickctls were quoted as bearing on ilie subject. Jlr. Wvnn then expatiated on the direct and peculiar intere.-t which the Crown retained in the lands of Jew Zealand, becau-e large loans hud been aulhi-ris.d bv the Imperial Government, for which these: laud? were, the guarantee lie also pointed out that a .mi niltimiix could only issue Ibr tlie enforcing u ] üblic viaht, whereas the applicant was trying to establish what could only be denominated a private riyht, as although it might be argued that it wa.< desirable to retain in the colony a certain class ofiudividuuls, and that a public benefit was thereby seeinvd, still the benefits sued for were merely those accruing to the party himself. iUr. Wvnn then took up the second branch of the argument, namely, that bearing upon the exact construction of the term "militnrv olliccr." To assist the Court in coming to aeonelujion on this subject he produced Ogilvie's Imperial 1 >ictionarv, v.-here the adjective " military" was defined to mean : 1. Pertaining to soldiers or to arms; as a militnrv parade or appearance ; military discipline. 'J.. Engaged in the service of soldiers or army; as a military man. 3. Warlike, becoming a soldier ; as military virtue ; military bravery. 4. Derived from the services or exploit s of a soldier : as military renown, o. Conformable to the customs or rules of armies or militia ; the conduct of the olliccr was not military-—■ and a variety of ot hers.

His Honor remarked that he had never vet succeeded in getting any useful definition out of a dictionary. Mr. Wvnn said according to this interpretation a "military officer" was certainly not a civil but a combatant officer. An a liny was divided into two distinct branches—the executive and the administrative. The first consisted of those who did the actual work of fighting; the other did everything necessary for the sustenance, pay, medical treatment, &e., of these men. Tho applicant belonged to tho latter category. He admitted that tho Act was defective there was no interpretation clause, and tliev were consequently left in the dark as to what the legislature meant to include in the term " military." if the Act left a doubt on the mutter, he submitted that tho Court could not well be called upon to grant a «i«hdamus. Purveyors were not entitled to soli their commissions, and therefore although it might seem ,but a mercenary view to take, were ipse facto not so valuable as settlers as officers who would commence with a considerable sum of money derived from the sale of their commissions. He adduced the instance of chaplains in the army, who also held relative military, rank, but who certainly could not be called military men, and who lost that rank on retiringfrom the army.. The Queen's warrant of ISCI, by which the present status of purveyor is defined, cannot be used to interpret the Waste Lands Act of 1858. A long extract from the Mutiny Act was read, in which the words " Civil Departments of our Army " were always used in speaking of the noncombutant branches, and special exemption made of " certain persons hired or employed in assisting in tho performance of military duties." Mr. Wynn again repeated that the only desire of the Government was to obtain a proper interpretation of the Act, and concluded a forcible speech of two hours and a half by calling upon the Court to refuse the issue of tho writ. Mr. "Brookfield, for the plaintiff, replied that ho had not much to add to the arguments he hail used in his ex parte statement. He regretted that the opposing counsel had not searched his own dictionary a littlo further as lie would .have found the substantive " military " defined to mean " the whole body of soldiers; soldiery; militia; an nrmy." Tho object of the franiers of the Act soena.d to have been to induce a body of settlors to remain in the colony, who might be useful in various ways. It. therefore Invited the s. ttleuient of three classes of persons—l. Immigrants ; •>. Kctirrd Naval and j'iintary men; :j. Persons engaged in education. It the second, class Has do-in.We for the pinpo.-e of tomans the im. k-us •'< column I army, it was at least ils necc: s;.; v- to have persons acquainted with the interior oru-anis-i----t?on of an ainiv as the mere fighting clement.''lt was a- l;no\\n tact that untrained civilians- seldom made good military administrators. Jf. was the duty of the C'onrt to interpret (he A t. As to tile stiikii-.r disproportion ia tho quantity of h,nd between the Commissioned oliieers and the next rank, it was not

nearlv so great as in tho old land regulations. A point'had been made, by his friend, of purveyors not being entitled to half-pay, but .lie-brought forward the royal warrant to prove that thoy were distinctly so entitled.. • ) His honor observed that it appeared by this warrant that none but purveyors and dcputy-purve.vois would have a claim under the Act, as there w.-s no class analagous to non-com missioned officers ill tie •&- ! j>:irtn>or.t. Mr. Brookfield reviewed all his former arguments in support of tho affidavits, which sh»wed I hat the applicant had held a position that entitled him 'o nil tho immunities and privileges of otUor military officers, except the presidency of courts-martial, on which, however, they wore liable lo he called to sit as members. Addressing himself to (he argument against granting tho wniultiiiiiis on the ground of its dealing with the property of the Cro vn, he said he was oiuy asking for something which would enable him afterwards to ask for a crown grant. The land order cuuld only bo looked on in the light of a certificate that certain regulations had been complied with. This was admitted by J\lr. H'a'zelden to have been done, and with regard to a change of officials, he ima'ghiwl it would be competent to the Court to address its writ to the Waste Lands Commissioner, by which any one holding that office would be bound, ii, did not follow that he should ever ask for the land. Three years hence ho might or might not come to tho Crown and say, " I have fulfilled all your conditions, give me my grant." lie quoted Tapping to show that when the- Court has great donb t tho luiniifawttx will issue. His Honor': You would als'o nrguo that the case being unexampled, there is no other way of trying it than by liiaiir/im. its. MV. Blookfield said the Commissioner was not another's servant; he is the only person who can carry out the provisions of the Act; he does everything without reference to the Superintendent; is ordered to be appointed by Act of Parliament, and is therefore, a pi oper person to b'e l-eached by■mumlumHu. There is no higher d'ttty of the Court of the Queen's Bench thaVi io enforce tho doing of their duty by pii-sons entrusted with large and extensive powers. A very slight public benefit is sufficient to bring it within tho meaning of that term. With regard to the Crown being unrepresented, it was not interested, anil, therefore, not represented. Tho discretionary power of the Commissioner must, not be exercised in an arbitrary or improper manner. If it were, lie should still he able to come to tho Court for redress. 31 r.!>ro* .kfield's address occupied nearlv two hours, and concluded by thanking his I-lon'or for hisremarkab!v patient and carrf'nl attention, which, he trusted, would result in his granting his client's application. The Chief Justice deferred judgment till a future dav, and stated that he would give his reasons for it in writing as being more satisfactory ill a case which involved important public interests. He took with him, for the purpose of careful re-perusal, some of the documents oil which tho arguments had been based.