AN AUCKLAND ENDOWMENT

New Zealand Herald, Volume XLVII, Issue 14491, 4 October 1910, Page 6

AN AUCKLAND ENDOWMENT

CASE IN 1 COURT OF APPEAL. BIG SUM INVOLVED. EDUCATION OR CHARITY. [r.T TELEGRAPH.—SPECIAL CORRESPONDENT. ] Wellington, Monday. The possession of a valuable endowment o£ one and a-half acres off Queen-street, Auckland, was argued in the Court of Appeal to-day, tlie Court being asked, under the Declarator}' Judgments Act. to decide between the rival claimants. The property is vested in the Public Trustee, and it was allowed by statute to be mortgaged by the Auckland Hospital and Charitable" Aid Board, along with its reserves. The surplus income, after paying of! annually a number of debentures, went to the Auckland Hospital Board, an interested body. The Auckland Hospitals Reserves net, 1883, provided that after the debentures had been repaid, the reserve should revert to the Public Trustee, for the purpose of general education. This left open the question whether the Education Board or the Department took the rents. By a later Act. it would appear as if the reversion went to the Auckland Hospital and Charitable Aid Board. The matter was recently before Mr. Justice Edwards, in Auckland, when the Education Board took oat- an originating summons with the Public Trustee as defendant, but the Court ordered it to be served on the Minister for Education, and the Auckland Hospital and Charitable Aid Board, as they were parties actively interested. The Public Trustee submitted to the order of the Court. To-day's proceedings were the general outcome. The following were on the Bench : —His Honor the Chief Justice (Sir Robert Stout), and their Honors Justices Williams, Edwards, Cooper, and Chapman. Air. J. R. Reed represented the Auckland Education Board, Mr. W. Salmond (Solicitor-General), the Public Trustee and the Minister for Education, Air. A. Turnbull, the Auckland Grammar School, and Air. C. P. Skerrett, K.C., with him Mr. 11. AfeVeagh, the Auckland Hospital and Charitable Afd Board. Mr. Reed outlined the facts relcvent for the Court's judgment. He pointed out that under the Supreme Court Sites Act, the Auckland Provincial Council authorised the payment of a sum of £25,000 to the general Government for the purchase of a piece of land in the centre of Auckland. That piece of land was originally the site of the old Supreme Court and gaol, in Auckland. "I believe that murderers were nanged there," added counsel. The land is now valued at about £250,000. Air. Justice Cooper pointed out tluit after the Court- and gaol were removed there was a market place on the site. For a long time the graves of at least five criminals who were executed were there. Continuing, Air. Reed said tho land was purchased as authorised, and the Crown grant was issued. Two Acts dealt with the particular- site, the Public Buildings Act, 1875, which authorised certain commissioners to raise a sum of money upon the security of this land, and a number of other allotments. There was also the Supreme Court Sites Leasing Act, 0f'1875. The Chief Justice : It all comes back to the Supreme Court Sites Leasing Act and the Public Buildings Act, 1875. Air. Reed agreed that the loan authorised was to be expended on the Hospital Board and Auckland Education Board. The Public Buildings Act, 1875, was repealed by a Statute of the General Assembly the following year, the Auckland Public Boards Act, 1876, which reduced the sum that might be raised under the previous Act. The money was to be expended in building equipment, under the management of the Board of Education and the Auckland Hospital Board. This was how things stood at the . time of the passing of the Abolition of the Provinces Act, 1875. Tills Act had two sections, which affected the purcnase before-mentioned. Section nine, under which the lands and properties, etc. were vested in Her Majesty the Queen, and section 10, which dealt with the property vested in the Board of Education. The Chief Justice: In whom do you contend that the land was vested in 1876 ? Air. Reed: By the Act I have just quoted, in the Queen. That Act came into force on the last dav of November, 1876. The Chief Justice expressed the opinion that that Act did not touch the question of the powers vested in the commissioners at all. Mr. Reed submitted that the Act directly under notice, and the Abolition of Provinces Act, in conjunction, affected the vesting. Air. J. W. Salmond pointed out that it was not intended to argue that there had been specific vesting ot the lands in the commissioners. By the Education Act, 1877, the Auckland land education district had been divHfld, the counties of Cook and Wairoa being taker, from it and added to the Hawke's Bay education district. Mr. Reed said he had not been aware of that. The Chief Justice: If this is not the 6ame district that is now under the Auckland Education Board, must you not have a scheme of division to have the trust carried out properly? There is no statutory provision for that, is there? Mr. Reed : No, Your Honor. Mr. Justice Cooper: You might have to give a special share to the Hawke's Bay Education Board. The Chief Justice: And it would have to be reserved for the Cook and Wairoa counties. Mr. Justice Williams: Suppose the property had been left by a private person to the Education Board. It would then be a valid charitable bequest and would you not have to come to tho Court for a SDecial scheme because you could not carry out the trust literally? Does the fact that the land was vested by statute alter the position? Air. Reed: I don't want to appear greedy on behalf of the Board, but I submit that the Act of 1883 seems to have been referring to the education district as it then was, and it is still the same. The Solicitor-General said he would ask the Court to hold—(1) That the land is an educational endowment for tho provincial district of Auckland; (2) that it is vested in the Public Trustee, and that, the trust is to be administered by him: (3) that the Auckland Education Board has no right to demand the receipt of the revenues from the land or the administration of the trust; (4) that as to the mode of administering the trust, there are various possible alternatives. The first of these alternatives is that the Public Trustee should administer it as if the land were an educational reserve, under the Education Reserves Act. The second alternative is that the administration may be within the discretion of the Crown, through its servant, the Public Trustee. The third and last alternative is that, by change of circumstances, the trust may have become so indefinite that recourse may be had to the Legislature to define the trust, or to this Court to execute the trust. The alterations in the boundaries of the education districts came up again in Mr. Salmond's argument. He pointed out that by the Education Act. 1877, the Auckland' education district (which was previously coterminous with the provincial district), not only lost the counties of Cook and Wairoa, but also gained East and West .Taujjo from the Wellington and Taranaki districts. From these facts he argued that it could not have been intended that an educational endowment of the Auckland provincial district should pass to the present Auckland Education Board. The Board was not the proper body to administer such a trust, because it was not the heir of the old Board of the provincial days. Such a claim was on the level of the claim of Arthur Orton to the Tichborn estates. (Laughter on the Bench). A precisely similar claim could be made not more unreasonably by the Hawke's Bay Education Board. * j The hearing had not concluded when J the Court rose. i