POWER TO BORROW

New Zealand Times, Volume XXXIII, Issue 7850, 12 July 1911, Page 7

POWER TO BORROW

TO ERECT NEW BUILDINGS AUCKLAND HOSPITAL BOARD CASE. His Honor Mr Justice Sim delivered his reserved judgment yesterday on tho originating summons Fuhlio Trustee v. Auckland Hospital and Charitable Aid Board. The summons was issued for the purpose of obtaining a declaratory judgment determining tho harrowing powers of tho Auckland Hospital Board. .An extensive building programme is being entered upon by the Auckland Board, and to carry it out they propose to borrow some £70,000. What they were desirous of ascertaining from tho court was whether tho general borrowing powers of tho board conferred by the Act of 1909, which altered materially tho constitution, were controlled, affected, or abridged by the private Acts relating to the Auckland Board passed in 1905 and 1907; whether tho powers of borrowing conferred under all tho Acts could bo exercised concurrently; and whether it was lawful for the board to enter into a covenant that a rate would be levied annually to provide for interest and sinking fund on the said loan. His Honor said that the Hospital and Charitable Institutions Act, 1909, dissolved all the existing Hospital and Charitable Aid Boards and substituted for them tho new beards created by tho Act. Tho private Acts of 1905 and 1907 conferred upon tho Auckhmd Board special powers of borrowing in respect of certain lands held by it as endowments, but the board that was clothed with those powers had ceased to exist. All tho property held by the old board had been vested in the now board, hut there was nothing in tho Aot that expressly vested in the new board any powers which had been conferred on tho old board.

“The Legislature, by merely preserving the continuity ot existence of the old and new boards,” said his Honor, “did not indicate, necessarily, an intention of clothing the now hoard with any of the special powers of the old board. The question is not whether a prior special statute has been repealed by implication by a subsequent general statute, but whether the new board created by the general statute was intended to have the special powers conferred on the old board by the special statute. The Legislature has not said so in express terms, and in view of the provisions of the Act of 1909 it seems to me that the proper inference to bo drawn is that the powers intended to bo conferred on tho new board wore only those specified in the Act of 1909. This view is confirmed by a consideration of tin provisions of sections 50 and 58 of tho Act of 1909. These make it clear, I think, that the powers conferred by the Act are intended to override the terms even of any trust inconsistent therewith, and indicate an intention to make the provisions of the Act supreme with regard to the powers of a board.

“The answer,,'therefore, to 'the first and second questions submitted is that tho only powers of borrowing vested in tho defendant board are those conferred by the Act of 1909. and that these are not controlled or affected in any way by the Acts of 1905 and 1907. / ‘ 3 “With regard to the third question submitted it seems clear that it would he tho duty of tho defendant hoard, in malring up tho estimate under section 41 of tho Act of 1909, to take into consideration tho sum required to bo paid for interest and sinking fund in respect'of the loan. It would he lawful, therefore, for tho hoard to 'enter into a covenant such as that proposed, Such a covenant would amount only to an undertaking by the board to perform tho duty already imposed upon it by tho statute.”