WELLINGTON COLLEGE

New Zealand Times, Volume LXXI, Issue 4311, 21 March 1901, Page 2

WELLINGTON COLLEGE

TITLE TO THE GROUNDS. GOVERNORS' POSITION UPHELD. In the Court of Appeal yesterday morning argument was concluded in the case removed, Henry Jackson v. Wellington. College Governors and others. Mr Travers was for the plaintiff, and Mr Hislop for the defendants. Judgment was delivered at 2 p.m. The Chief Justice said this was an action for an injunction. The plaintiff claimed that the defendants might be restrained from laying off or forming a street upon a parcel of land comprised in a certain deed, and which was granted to the plaintiff and two other persons in trust for the Wellington College. There were in his Honor’s opinion two grounds why the plaintiff could not succeed in his action. Tho first was that ho had no status to sue, for the laud never became vested in him, and the second was that the land had been, and was now, vested in the defendant corporation, the Governors of the Wellington College. The land purported to have bepn vested in tho plaintiff by virtue of a deed which, was executed on the 7th February, 1877, and which was supposed to be in pursuance of section 2 of thei AVelliiigbon City Reserves Act, 1872. That Act provided that a certain piece of land which was part of the Town Belt of Wellington, might by the Superintendent of Wellington, with the advice and consent of hia Executive Council, be appropriated for the purpose of a collegiate institution affiliated with

the New Zealand University, and that the Superintendent, with, such advice and consent, as aforesaid, might convey the land to for the purposes of such institution in such manner and under such conditions as the Superintendent, with the advice and consent of his Executive Council, might agree to. The land seemed to have been set aside, and the Wellington College Governors entered into possession of it. There was no precise date of the time of entry, but it must have been some time at the end of 1872, or early in 1873. The Legislature had in various Acts which it had passed assumed that the land in question was destined for the Wellington College, and was, in fact, vested in the Wellington College Governors. Reference might be made to the Wellington College Act, which was passed twenty days later than the Wellington City Reserves Act, as showing that in that Act it was assumed that the collegiate institution mentioned in the Wellington City Reserves Act was the Wellington College, because the proviso to section. 13 said that “nothing herein contained shall be construed to authorise the letting, or leasing of any part of .the land vested or to be vested in the said Governors, which now is or shall have been part of the Town Belt of' the City of Wellington.” No trustees were appointed by the Superintendent, and his Executive Council, though the land apparently had been appropriated and/ set aside for the purpose of the college. Then came the Aboli- : tion of Provinces Act, 1875, and the provinces were abolished on the 31st October. 1876, There was ' provision made in the Abolition of Provinces Act for the performance by the Governor of the powers and functions which had been vested in, the Superintendents of the abolished provinces, either alone or with the advice and consent or on the recommendation of the Executive Council, or the Provincial Council. The Abolition of Provinces Act recognised

a weu itnown uisi/iuomuii. ■...... affairs. It recognised that the Superintendent could perform certain acts alone, no doubt on the advice of Ins * responsible officers, hut that he had to perform other acts on the advice and with the consent of his Executive Council. The same distinction was recognised all through the legislation and the system of government of the colony. The distinction was ever recognised under the provincial system, and R was j;ecognised in' the Abolition of Provinces Act. That Act provided that those tilings which could bo done by the Superintendent with the advice and consent of Ins Executive or Provincial Council could, after abolition, be performed by the Governor alone. Section 12 ot the Abolition of Provinces Act allowed the Governor to delegate to a person or persons powders which the Superintendent could exercise by niuiself alone. That was, those powers which the Superintontend on t could exercise without the cou_ sent : of his Executive or Provincial Council. As the Governor could only appoint a delegate to do those things which the Superintendent by himself could do, Mr Bunny, who was appointed a delegate, therefore had no power to appoint new trustees or to convey to trustees the land mentioned in section 2 of the City Reserves Aot. Mr Bunny was only a delegate to do those things which the Superintendent, could do alone. It was expressly provided by section 2 of the Wellington City Reserves Act that the appointment of trustees and manner of their appointment and the conditions of their trust, and everything else in connection therewith, was to be done with the advice and consent of. the Executive Council. Mr Bunny, therefore, in his Honor’s opinion, had no power to execute the deed of the 7th February, 1877. _ Mr Thayers had met this point by urging that the Court must assume that the Executive Council of the province, before its abolition, aavised and consented to the appointment of the trustees. He admit! ted that there was no evidence of that. But he said the Court ought to presume that, following the maxim - Omnia prosumuntur rite esse acta. In his Honor’s opinion, that maxim could not apply here. At the time that the act in question was done, there was no Executive Council in existence. The Executive Council liad ceased to exist at least -by the 31st October, 1876; and the instructions for the deed were not given until January, 1877. There was therefore no one that could be presum. ed to have assented—because there was no Executive Council in existence—to the execution of the deed. Therefore, he did not think that any Court oould assume that assent had been given some years or a year previously to the execution of the deed, or that that would have been fulfilling section 2 of the Wellington City Reserves Act. On this ground alone—that Mr Bunny had no power to appoint Mr Jackson as trustee, and, therefore, that Mr Jackson had no status—the action against the defendants must fail. His Honor thought, however, that the second ground was equally fatal. The Act of

1887 provided! for the vesting of 'certain land in tho defendant corporation. The words used in section 11 of that Act were;—“All real or personal property immediately before tho coming into operation of this Act vested in, belonging to, or under the control of the Governors of the Wellington College constituted by any Act hereby repealed shall, on the coming into operation of this Act, bo vested without any con. veyance in the Governors and 1 their successors as constituted under this Act” In his opinion till© land was under the control of tho Governors of Wellington College. That was assumed by the Act of 1878. That Act empowered the defendant corporation to lease certain portions of the land. Certain portions were not to be leased. That was no doubt dona because of the express terms of the Act, which provided that nothing in the Act of 1872 should be construed to authorise; tho letting or leasing of any portion of land which had been part of tho Town Belt—pointing to this exact piece of land. Then came the Act of 1887, which allowed certain parts of the land to bo leased. That land was described in the schedule to the Act, and tho description in the schedule assumed that all the laud was in the possession of the college. His Honor thought that tho words “under tho control of tho Governors of the

Wellington College” were sufficient to cover the management that tho Wellington College had of this piece of land, and he thought it was clear from sections 13 and 14 of the same statute (the Wellington College and Girls’ High School Act, 1887) that tho Legislature assumed that tho land had become vested in tho Governors of the College. .Section 13 said that “tho Governors shall have power with respect to all lands which may be vested in them upon trust for tho purposes of this Act to manage tho same as they may deem fit, and, except as hereinafter provided 'from time to time to let the same or any part thereof for any term not exceeding forty-two years from the date of the lease thereof at such rent and on such terms and! conditions as they shall think fit, but so that no fine, premium or foregift he taken.” Now, what was the hereinafter provision ? It was the granting of power to the college to let part of the land—namely, to let a smaller part. Ho thought, reading sections 11, 13 and 14 of tl*3 Act of 1887, that it was perfectly plain that tho land had become vested in the defendant corporation, and, therefore, that there was no title whatever in any trustees, nor in any person but the defendant corporation, the Wellington College Governors. On these grounds he was of opinion that the plaintiffs action must fail. Mr Justice Williams said he was of tho same opinion. He thought that tho deed of tho 7th February, 1877, was invalid, and that nothing passed by it. It could noUhe assumed that the Executive Council had during its existence advised and consented that the Superintendent should execute a deed in: the precise terms of the one here in question. .Th° execution of the deed did not come within the powers, and duties delegated to Mr Bunny. It was only on the strength of the delegation to him that he purported to execute the deed. If the deed conveyed anything; then, apart from tho subsequent legislation, the provisions of section 2 cf the Wellington City Reserves Act, 1872, would still remain in force. : It would be the duty of the Governor, as representing the Executive - Council of the Province, to execute tho con veyance. in. teirnvs of section ~. But there nad been subsequent legislation,

and whether the deed of the 7th February, 1877, were valid or whether it wore invalid, the question was, in his Honor’s - opinion, finally determined by section IX of the Act of 1887, which expressly vested in thd Wellington College Governors all real and personal property that was under their control. It hadl been suggested that the words “under the control” could not properly be applied to real property. In his, opinion the contrary was the case. They more properly applied to real than to personal property. If the section was intended to pass property—the real property which was under the control of the Governors —then the only question remaining was, What real property, at the time of , the passing of the Act of 1887, • was, in the contemplation of tile Legislature, under the control of the Governors? He thought the answer was conclusive., Ho thought that the Legislature, by the Wellington College Acts Amendment Act of 1878, had expressly given to the Governors the control of the particular land, in question. Mr. Justice Henniston said he had arrived, without any difficulty, at the same conclusion. The proposition that the execution of the deed of the 7th February 1877, must bo taken to he a purely Ministerial act giving effect to a previous decision of tbe Superintendent and his Executive Council, and that it was one which, on that supposition, could he given effect to by a person holding a delegation under the Abolition of Provinces Act from the Governor, seemed to be quite untenable. There was, in the first place, no proof whatever of such a state of things as Mr Travers had suggested would Justify the Court in treating the execution of the deed as a Ministerial jact. On the ' contrary, What evidence there was went to show that the act of appropriation which might reasonably be taken to bare been done by the Superintendent and his Executive Council was totally independent of the execution subsequently of a conveyance of the land. The mere fact, therefore, that the land had been appropriated for-the purpose stated in section 2 of the Wellington City Reserves Aot afforded no ground whatever for assuming that there was any subsequent decision upon the part of the Executive Council as to the conveyance of the land to trustees. As to the subsequent legislation, he thought it was impossible to read sections 11, 12, 13 and 14 of the Act of 1887 without seeing that it was clearly the intention of the Legislature to vest the land in the Governors, with, power of management. There was a specific vesting of the land in the Governors managing/he college, obviously upon the conditions j under which it had since continued to i be managed. Mr Justice Conolly, who was also of the same opinion, agreed with a remark mad© by the Chief Justice that the statement as to .the affiliation of the college with the New Zealand University was a term of designation. Mr Justice Cooper also concurred. He said that from the time of the oopnng into operation of tue Wellington, College Act of 1872 the -Legislature seemed to have contemplated that the land was already vested or was to be vested in the Governors, and that was carrir, through the whole of the suhseque. legislation. Judgment was given for the defendants, with costs as on an action in the Supreme Court in which. £SOO were claimed; £ls 15s for second day, and the usual disbursements and other expenses.