The New Zealand Herald AUCKLAND, FRIDAY, JUNE 14, 1867.

New Zealand Herald, Volume IV, Issue 1118, 14 June 1867, Page 5

The New Zealand Herald

AUCKLAND, FRIDAY, JUNE 14, 1867.

SPECTEMDE AGENDO. " Give every man thine ear, but few thy voice : Take each rcnn's censnro, bat reserve thy judgment. This above all, —'I'o thine own eelf be true A nd it must follow, as tho night the day. Thou cacat not then te false to any man."

Tite case of Bosie versus the City Board is of too much importance to be passed over without being fully discussed by the press. With the verdict of the jury on Wednesday we fully agree. The evidence then adduced pointed to no other conclusion than that at which the jury arrived, and a very small portion of that evidence really decided the case. The evidence of the City Board's officer, the foreman of worts, taken in conjunction with the letter of certain inhabitants of Freeman's Bay to the Board, effectually disposed of the question of leave and license to do the injury complained of. The letter requested the Board to proceed with the works in accordance with the leVels to be fixed by Mr. Anderson, and Mr. Anderson distinctly swore that he had never fixed any levels, but that he varied them as he thought best as the work proceeded. It. is quite clear, therefore, that Mr. Anderson had never done the act, the doing of which was the sole condition on which the memorialists agreed that the formation of Drakestreet should be proceeded with. The leave and license contained in the memorial or letter was therefore rendered nugatory by the failure of the Board's servant to fix the levels. llow the officials of the Board, tho clever Secretary who has ample time to read the few letters sent to the Board, and to endeavour to understand them, could fail to see that the fixing the levels by Mr. Anderson was the gist of the letter to which we are referring is somewhat unaccountable. llow Mr. Anderson too, could fail to observe that he was not acting in accordance with the terms of that letter we cannot clearly see. The letter says clearly enough that Mr. Anderson is to fix the levels, the Secretary, Mr. Anderson, and the Board all fail to perceive this, or seeing it they disregard it, and fancied they could carry matters with a high hand, no matter what loss or injury their acts might occasion to private individuals. But if we take the evidence of other witnesses we find that even had Mr. Anderson, fixed the levels, the clear understanding between him and the memorialists was that the levels to be fixed by him should show a less cutting than those of Mr. Wrigg. Tlie latter showed a cutting of 6 ft. 8 inches, according to the evidence of Mr. Anderson, and therefore the depth of the cutting to wihch the memorialists agreed was less than 6 feet 8 inches.

Indeed, it was stated on oath, and not contradicted, that the levels mentioned by Mr. Anderson, as those -which lie thought best, would entail a cutting of only between three and four feet. The letter was written 011 the general understanding thus verbally come to. But instead of less than Mr. "Wrigg's levels of Gleet 8 indies, the cutting proposed under the ever changing levels of Mr. Anderson, was to be 8 feet deep, 1 loot 4 inches more than Mr. Wrigg's levels, and some -i feet deeper than was understood by the persons who requested the Board to proceed with the works. The case was lost therefore so far as this averment was concerned through the Board and its servants not keeping an express engagement made. Mr. Anderson's conversation with t lie memorialistsought to have been fully reported to the Board, and the work should either have been proceeded within the terms of that conversation and that lett er, or not begun at all. Before leaving this part of the. subject we must point out the exceedingly loose and unbusincss like way in which the business of the Board in this matter has been conducted, or shall we say the manner in which it has been misconducted. "Why, we should like to know, should the details of a public work, costing between one and two thousand pounds of t he ratepayer's money, be arranged tlvrough conversations between either the secretary or the foreman of works and other parties, and the terms agreed upon not be reduced to writing ? 11' the secretary to the Board had caused the memorialists strictly to define their proposals instead of leaving them in the vague manner in which they were left, then there would have been something tangible and authoritative, and these unfortunate works might never have I been commenced, or, if commenced, it is more tliau probable, the hardly earned and ill spared money of the ratepayers would not have been uselessly swallowed in Freeman's Bay, nor dissipated in law expenses. We say uselessly swallowed, for the verdict of the jury entails the necessity of restoring the road to its former state. But it may bo said that the Board might have lost their trial on other grounds, as for instance, on the question that they have no legal right to cut down streets and alter levels. But this takes nothing from the force of the arguments we have used above. For no matter what rights the Board had in other respects, they would have had no right to have done a work in a certain maimer on the ground of having leave and license so to do it, when they had only leave and license do it in quite a d liferent manner. Tlio secretary ol the Board was not examined as a witness on this trial. Another instance of something which appears to us not quite according to strict arrangements is to be found in the evidence of Mr. Anderson. lie said he varied the levels as the -work proceeded. Had the Board retained the services of a competent engineer, we rather fancy this manner of constantly changing levels would not be in existence. Surely all tho levels ought to have been properly and authoritatively lixed before the work was contracted for, and not left to be varied from day to da}' during the progress of that work. A competent engineer would hardly so carry on works, and it is evidently a system that is liable to endless abuse and to entail endless disputes and litigation. "Wo have no desire to speak stronger than tho case warrants; Mr. Anderson is foreman of works, not an engineer. He is acknowledged to be a very excellent foreman of works by professional men who understand what they talk about, but lie is not an engineer. The penny wise system of doing without an engineer is pound foolish. There was another topic referred to during the course of the trial, viz., the want of proper courtesy by the Board or its servants to persons who address letters and memorials to them. "We take it that a public body, acting as the representative of the ratepayers, should certainly answer, in one way or the other, all letters sent to them by ratepayers. They are elected to do this, among other works, and they appoint a secretary and pay him out of the rates, to attend to those who pay the rates from whence his salary is derived. As to the finding af the jury that cutting 8 feet below the level of liosie's property, aud close to it, would bo a " great and irreparable injury," there can be not the slightest difference of opinion, after the legal definition of the word " irreparable " is known. Irreparable in law, it seems, means a considerable and 'permanent injury; not an injury that cannot be rcpau-ed, that is, not reparable by the expenditure of money. An injury, according to the dictum of Mr. Gillies and tho ruling of the judge, is irreparable if it would cost any considerable sum of money to mitigate or remove it, and if without that expenditure, it would be a permanent injury. Of course this ruling at once disposed of the formidable word '"irreparable," and made the course of the jury perfectly clear and simple on that point. This trial will bo the death knell of tho City Board. It will usher in, or at least be the prelude to, considerable changes among us. It is the beginning of the end. A mayor and corporation will be the final result of the trial, and tho duties and powers of the civic authorities will bo clearly and distinctly defined. Considering the Act under which the Board is formed, we are only surprised that it has not caused a very large amount of litigation. Tho powers of the Board are' really, it would appear, very limited and very ill defined. Tho General Government will doubtless introduce a general Act on the subject during the coming session of Parliament, and when Auckland has a new municipal body, with strictly defined powers, we may venture to hope that its officers will have sufficient knowledge of business to avoid mistakes of a very serious character, and that a better system of conducting tho public business will be inaugurated and carried out.