SUPREME COURT JUDGMENT

Otago Witness, Issue 3442, 2 March 1920, Page 8

SUPREME COURT JUDGMENT

HOW AT v. TUAPEKA COUNTY COUNCIL. His Honor Sir Robert Stout gave judgment in the case of Howat v. the Tuapeka County Council on the 23rd ult. What was sought by Ueorge Jtiowat (plaintiff) was an injunction restraining the Tuapeka Countv_ Council from levying rates, on the ground that the council had made a rate not authorised by law. The judgment, in an abbreviated form, was as follows:—It is apparent, from the estimates on which the rate was founded, and also on the resolutions passed, that the express terms of the 118th section of the Counties Act, 1308, were not followed, but were ignored. There- was no consideration of the work required in each riding, nor, in fact, in any riding. The accounts of the ridings have also to be considered. The provision that has been in force since October 12, 1915, is that "the amount apportioned to any riding shall be expended on works in that riding during the same or any subsequent year." Since 1915 To the time of levying the rate there have always been sums standing to the credit of two of the ridings—namely, Crookston and Tapanui—and each year has seen,'so far &s these ridings are concerned, a balance unexpended. There were a credit of £1798 16s 7d in the ridings account of Crookston and Tapanui, and a debit of £4890 in the other ridings. This was never considered by the council in making the rate, nor were the works required for each riding considered. It is plain that the. council assumed what, in fact, its counsel argued: That the dominating section was section 128, that deals with expenditure; and if there were a conflict between the provisions of section 118 as amended and section 128 as amended, section 118 must be ignored. The question at issue, therefore, in this action is: Can the council put on a uniform rate for all the ridings without considering "the expenditure required to be provided for works, in a riding," and without considering the amount to the credit of a riding? Counsel for the county contends, first, that there is no provision in section 128 (which deals with expenditure) which earmarks any sums for riding- expenditure save those apportioned under (e), and only £4OB was apportioned, and that there miust be one uniform rate, else there can be no apportionment. He argues the "gross estimated income" must alone be looked at, and no "ridings' credits considered. It is apparent that the reading of the statute is_ neither consisent nor clear, but I am of opinion that the terms of the rating section 118 must be complied with before the rate can be held valid. If there is in the expenditure section no proper safeguarding of the interests of the ridings, that will not justify the county in levying a uniform rate unless that is necessary under section 118. Subsection (2) of the 1915 Act must be complied with, and that would safeguard the _ ridings. In this case the amount to credit on March 31, 1919, was sufficient to pay for the works required for the riding of Crookston during the year without imposing ai.y rate except a rate for its share of the general expenditure. It was urged sums were authorised for further works, but it is clear from the affidavit of Mr Rodger that at the end of the financial year Crookston will have to its credit as much as it had at the commencement of the year, and what has happened to it during the past five vcars will continue. Unless the express powers of section 118 of the 1908 Act as amended, and subsection 2 of section 6 of the 1915 Act, are to be set aside, the rate is invalid,e being- unauthorised. It has not been to refer to the cases of Hutt County Council v. Crawford and Warren v. Pahiatua County Council, as both were decided before the law now. in force was enacted; but the general remarks in both are in favour of the position the plaintiff has taken up. In the latter case the works required for the riding were considered, and it was found the rate levied was necessary- In the former case the only point decided by the Court of Apnoal was that, though a form was not complied with, the substance had been complied with, and the statutes there concerned were not the same as section 118, nor were the circumstances of the case like the present. I may add that subsection paragraph (a), section 128. assumes that before there can be an apportionment under subsection 2 of section_ 6, 1915 Act, the general debts and liabilities of the county have to be provided for. The amount to credit in the books of county of the Crookston and Tapanui Ridings may well be considered a liability of the county, and, if so, there could be no proper apportionment until these were provided for. It is, however, in my opinion not necessary to rely on this view, as it is clear that section 118, as amended, was _ noi complied with. An injunction must issue restraining the defendant county from levying the rate made on September 12

] and October 17, 1919. with costs (£3O) and ; disbursements. ! Mr A. S. Adams, who appeared for defendants, contended that if the council undertook to carry out the terms of the judgment the injunction should not be issued. • Mr Solomon said he would agree to that course. His Honor directed that the injunction should remain in the court for a month to give defendants an opportunity of complying with the terms of the judgment.