SUPREME COURT.

Wanganui Chronicle, Volume L, Issue 12145, 2 September 1908, Page 8

SUPREME COURT.

(Continued from Page 5.) The plaintiffs admitted the delegation was a proper one and contend that the ■delegate had now become an unfit person to carry out the provisions of the deed of delegation, and claim the cancellation of the deed and a mandamus to compel the cancel to terminate the - deed. Counsel submitted' that the cantellation of the deed was not capable of being done except for fundamental mistake, fraud or illegality, and neither -of these had been alleged or attempted to bo proved. If there were any reme--dy by cancellation of the deed, the action, being one concerning the public welfare, should be brought by the Attorney General. The suit was an attempt to get the Supreme Court to decide on a question of abattoir manage- - ment by the Borough Council and Borough politics. The whole matter was in the discretion of the Council and the Court could not interfere unless the - power, was fraudulently or improperly ■exercised. The correspondence showed that tho Council had acted properly. "The Court would not interfere even with trustees in the exercise of discretionary powers. Counsel cited cases as the Council being the sole judge as to the fitness of person to whom 'it delegated powers. The Court adjourned at 1 p.m. until 2 p.m. On resuming at 2 p.m., Mr Hutton, for defendant Company. xiioved for a non-suit. He submitted v that the Company had acted properly as far as possible. There was "no substantial evidence that the meat of the butchers was killed improperly. There was certain evidence of ground for comPlaiht which might arise anywhere. The Company had taken precautions to remedy these long before the action was commenced. The facts did not showthat the Company was an unfit person withm section 15 of the Slaughtering and Inspection Act, 1900, and the oblect thereof, not that it had not carried out its obligations. Counsel followed -the argument of Mr Barnicoat as to the vouncil s discretionary powers and quoted authorities. There was no inability alleged, on the part of the Company on the fact of competition' in retail trade. The Company if called on were perfectly willing to explain any seeming anomalies. Mr Cohen, for plaintiffs, replied on "the non-suit point, and traversed the - arguments of counsel for defendant Corporation and Company. The Court could not be deprived of its jurisdiction J "to prevent a wrong being done, becauso ■Of the originally honest exercise by the " Council of • its power under the Act. The Company had become an unfit person since the power was delegated. Counsel did not suggest fraud on the part of the Company at all. Counsel for the Corporation had contended that the Court had no right to redress a •wrong because the person doing it was originally honest in intention. He submitted that this was not so, and quoted authorities. The plaintiffs did not assent that the Corporation did not exercise its power in a reasonable manner. The power of mandamuses was eased on the principles of natural justice and its powers are auxiliary remedies. Section 15 of the Slaughtering and Inspection Act* meant more than counsel for the Company contended. The Act was strictly to pursue the purpose tor which it was specifically intended. Pubhc welfare was involved and it was -never contemplated that a Council in exercising the function of delegation should incidentally do an unfair thing to persons with whom it came in con^ tact. The Courb-has power, inequity to cancel a deed in any case where a question of public policy was concerned. Inere might have been constructive f? aud'.,/- e -' "^fairness through the Council a actiou. By entering into competition with the butchers the ComT?anv waa an unfit person to control an •abattoir.- It was hard that the -butchers should h& in the hands of tho ' Company. Up to September. 3907, the evidence showed bad and inefficient killing. Complaint was made to the Borough Council and it suggested that an inspector should be appointed, but tho butchers did no+ <vre^ + tl^ Mie-frestion From January. 19">7. -"h- Conrn^->o~ a strong: comop+i+irpi "n th~ ~ f^i 1 trn.-l •> - against "the bntche-s. The C nr-n-v could kill m'-at nndV ">nr.o favourable conditions +h-n +he hutch err:' This was - unfair and tno bn+chprs: ronll not r^--•taliate It^im; of ■'he s Jatn>-«. The kill- - ing wa~ ""fair, Wm«-o thr Company exhiW'l !-, e tfer ™o a t iii its shops than "the butchers .by kllng at Aramohp.lts meat fo-r v P + a -'l nurpos^ was not killed -at Casti-Tff ~W~ th- butchers' was, until .May, 100,8. Threfore, the ComW 7 T as nn* n fib person under the Act. It was al*o unfair that persons doing business should hay" th^ir business pass through the hands of a competitor in the same kind of busies. "Counsel said it was immaterial to show "that the meat was better killed from . January until, now. The Company -might kill at Aramoho again. The Company were in the position of being temPted during the summer months to" kill all meat for export in preference to "-the butchers' -meat. This Avas vn rair | and not in the interests of: public welfare. Counsel knew of no town of the .importance of Wangmui in whi-jh power as to abattoirs had been delegated to a company such as the defendant Com;;pahy. His Honour said it was not necessary to reserve his decision. He had -framed a definite opinion on the law. There was no material dispute on tho facts. He did not know the condition of affairs here prior to the Slaughtering and Inspection Act, 1907,. but he did know that the conditions were appalling elsewhere. The Act of 1900 had set - a different standard on modern scientific ideas. At the date of the deed, 3rd March, 1903, the Wanganui Borough :■■■■- Council in exercise of its powers under _ section 15 of the Act.of 1900 delegated ■to the defendant Company duties res- ; peeting abattoirs, Which otherwise were tho duties of the Borough Council itself. There were complaints that the works were not good and required modernising and altering. .Witnesses said the competition was detrimental. The ■ plaintiffs had detailed and concentrated complaints of years in a few minutes. The state of affairs was practically admi Ltod in a measure. A well-founded complaint had been made to the Borough Council, with the Tesult that communications re same had passed between the Company and the Borough Council, and assumed definite shape in September, 1907. From then definite steps had b&en taken to remedy reason- / able complaints. We come to a definite date—2oth January, 1908—when, according to Mr Stone, new works were opened, and from then it may be said that a totally different state of affairs prevailed The steps taken in September were in progress in January. This action was commenced on "the 23rd January, and this is not material, although tho action was commenced after the new works wero opened, but before a trial of them. It is certain that from January those grounds of complaint, which existed prior to then and which induced the Council to communicate with the Company, disappeared. The facts are not disputed and are derived trom plaintiff and a witness, who say that from the time the works were altered there were no complaints. The plaintiff is therefore now in the position of a person who desires to restrain an fiction detrimental to himself, which has disappeared. Now, there is no ground for pursuing his remedy. The plaintiffs ask for relief on the grounds that they had cause of complaint when "-'they brought the action and which may

occur again. The plaintiffs' grounds are \'■ twofold, (1) there is no guarantee that the complaints may re-occur, and (2) ' the position of the Company competing m -one retail trade is unfair. It may be incidentally pointed out that the fact of the retail competition was not originally complained about. What is the law applicable? In the first place section 15 of the Act gives the Borough Council certain powers, and if it chooses not to exercise them, power to delegate tho powers to some fit person. That involves some discretion as to who is a fit person It is not disputed that there was an honest exercise of the power, and that the Company prima facie was a fit person, therefore the delegation | was valid if nothing intervened. I feel quite satisfied that if the Attorney"General had been a party the validity of tho deed of delegation would not be challenged. The Legislature grants a power to a local body, and it has given power to the Borough Council. The Legislature has guarded against the misuse of the power, and the delegate must be approved of by the Minister of Agriculture. This is a security for the public against the improper exercise by the Council of its power. It is an important element in the case. Whatever local conditions might bring about by some favour from the Council has been cheeked by the over-riding authoriby of the Minister. There are many cases in which powers are entrusted to persons or bodies subject to the outside authority of such a person as the Minister. Ihis being present I ought to be careful not to interfere with the Council or with the powers Parliament has conferred on it. Here the Borough Council has appointed a delegate as allowed by Parliament, and the Minister has consented. It was a proper allegation. It is said that the Company has become unfib (its fibness was not questioned at the delegation). It may be presumed that the Minister foresaw the possibility of the arrangement proving undesirable, and this was guarded against by the provision in the deed requiring 180 clays' notice for the determination of the agreement. A power of revocation was necessary. The Court is now asked to step in front and .command the Borough Council to cancel the deed because of unfitness, or to revoke the deed because, same could.be cancelled with extreme difficulty. To suggest a mandamus to compel a local body to exercise its authority in any direction would require a very strong case. If tho Borough Council had refused consideration of the matter the Court might have compelled the Council to hear complaints and act. The Council here did consider the complaints, and made alterations so that the Company now has to slaughter meat for Wanganui to the "same standard as required for the London market. The Court is asked to re-. yoke the deed and ask the Council not to use its own discretion. This is not strong enough for that. It is suggested that tho Borough Council "should, for the grounds of complaint against the Company, restrain the Company from Killing in an improper way or from carrying on retail trade so as to affect butchers, i.e., that this Ccu-t should compel the Borough Council to bring an action -againgt the Company to restrain it m some way from acting as it has done. The Court never issues a man;damus to one psrson to bring an "action against-another. It might in very rare cases. Therefore I think it quite in-" conceivable that this Courb can give redress by compelling the C uncil to bring an action against the Company The case against the Borough Council tails. .Does plaintiff make a case out1 against the Company? There is no reasonable case—there is no legal ground of action. The remaining case is that the Company is killing as for the London market. That the conditions are unfair because the Company is competing in retail trade against the butchers. At first sight this might appear as not contemplated. The remedy is in the hands of the Borough Council, which is the proper body to consider remedies and can do so without any suggestion j trom the .Court. The duty of, the Coun°a i.ISm O act un(3er section 15 of the Act. The state of unfitness of the Con-, pany is a matter for inquiry. It crimes to tbi-: A .representative body repreflen1-'!-;; the electors (municipal) is to s'. in judgment between itself, the \ onpany, and the public. The Legislature has given a remedy at election time. The outlets are complete on all sides. It would be wrong for the Court to-interfere with the jurisdiction given to the Borough Council by Parliament Judgment would be for both defendants with costs to each' defendant as on a claim for £500. Allowance of £10 1U to each defendant for a second day Witnesses' ex-enses and disbursements to be fixed by the Registrar. _• ACTIONS FOR ACCOUNTS. Four actions for accounts were next called on, viz., Rendell v. Blake, Eadsley j. Blake, Hughes v. Blake, and Goldsack v. Blake. Mr Hutchison appeared for plaintiff in each case, and Mr Hutton, for Mr Dalziell, for the defendant. . It was at, first.agreed that"the cases should be taken together. .M'1 ', Hutton said that in two cases (Hughes' and Goldsack's) the plaintiffs had written re withdrawing, "and Mr Hutchison consenting, read the correspondence. Mr Hutton said he understood no warrant to sue had been filed. Ho was not quite certain of the position. Mr Hutchison said there were no denmto instructions to withdraw. He had pointed out the, consequences to plaintiffs if they did so, but he had not heard from them. His Honour said that the consequences practically amounted to a withdrawal of Mr Hutchison's retainer in ! the particular cases, and not to a withdrawal of the cases. | The two cases were then called, and no one appearing, were lefb on the records ;\s not dealt with. . . The case of Rendell y. Blake was heard, and the evidence of plaintiff, defendant. Messrs Bayley and Bullock taken. ■■ ".. ... His Honour dismissed the action with costs on the lowest scale, holding that plaintiff had not given reasonable time for accounts, and had not pursued any proper remedy under the agreement. Mr Hutchison said he would not continue the remaining case of Eadsley v. Blake.

The Court adjourned at 6.15 p.m. till 10 o'clock this >niorning.