Wellington Independent. "NOTHING EXTENUATE; NOR SET DOWN AUGHT IN MALICE." TUESDAY, 30th JULY, 1867.

Wellington Independent, Volume XXII, Issue 2551, 30 July 1867, Page 3

Wellington Independent. "NOTHING EXTENUATE; NOR SET DOWN AUGHT IN MALICE." TUESDAY, 30th JULY, 1867.

I __ Were it not that very importaut interests are involved, the recent proceedings in connection with the Wharf dispute would be 100 absurd to excite anything but laughter. First of all there was a dispute as to whether the contractors had or had not completed their work. The gentleman who acted as. Wharf Inspector , asserted, on the parfc of the Government, > that the contractors had done those things ■ which they ought nofc to have done, and left undone those things which they ought i to have done, and thafc there was no good within them. Thafc in his opinion being } so, he refused to give them a certificate that the wharf extension had been completed according to the conditions of the contract. The contractors on their side 1 alleged that they liad clone whatever they were bound to do, and that the other re- *' quirements of the Government, as being unjust and unreasonable, they declined to comply with. Now it so happens that by a particular clause in the contract, tho Government are entitled in the event of the contractors being dilatory in completing their work — to take possession of, t the wharf extension, complete what is necessary themselves, and charge the cost of doing so to the contractors. This clause, at first sight, would seem to justify the Government in taking forcible possession of the wharf extension, which Mr Kennard had shut oft* by a barricade ; but then ifc has to be taken into consideration that flic question whether the contractors had or had not shown dilatoriuess in the dispute. The Government allege that they have ; the contractors deny this altogether, arguing that; they have done all that they were bound to do by the contract, and that the accusation of diiatoriness, is fouuded on an unsound basis, seeing that the things -still asked to be done, they are not bound to do. . All the correspondence wliich has passed in this matter was published some time ago, and our readers will be able to judge whether or not our conclusion is corr-Kbt. By and by matters came to a crisis. Some weeks ago the Provincial Government attempted to take possession of the wharf extension. Mr Kennard and his men formally resis f ed and the Government for the time were nominally defeated. The affair ended in an appeal to the Resident Magistrate's Court, where one of the men employed by the Government charged fche special constable employed by Mr Kennard with assaulting him while executing the orders of the Government. After a considerable amount of argument the alleged assailant was fino.i in the nominal sum *of one shilling, to enable the other to appeal to the Supreme Court, so that the case involving the question of title could be heard- on its merits, Mr Borlase on the part of the Government pledging himself that if due diligence were used in obtaining the opinion of the Supreme Courfc he would not make any further attempt to take possession, of the wharf extension until the matterhadbeen adjudicated upon. This arrangement seemed clear onough bufc before many days were over a hitch occurred. The advisers of the contractors did use due diligence, but seemed to think that in their appeal to the Supreme Courfc they were entitled to take the technical objection thafc the Resident Magistrate had no right to fiuo afc all. Mr Borlaße contended, on the other hand, that as such an objection would sustain the appeal and as he had only consented to the arrangement on the supposition that the case would be heard on its merits he would now consider himself released from his pledge and fairly entitled to take auy steps as to the wharf which he thought fit We will not venture to decide dogmatically on the point in dispute when such competent authorities as Messrs. Izard and Buckley, on the one side, differ from Mr Borlase on the other; but, speaking extra-judicially, & does seem clear that if the case were agreed to be heard on its merits in the Supreme Court, the law ageuts of the contractors took an unfair advantage in urging the technical objection. Assuming them to have pled thafc the Resident Magistrate had no jurisdiction, then, of course, the appeal against his decision ' would have fallen to the ground, ' and the case, so far as its legal , merits wero concerned, would still have remained unheard. Thafc being so, we think the law agents of the contractors were wrong in laking up such a position. It was a matter of honor for them to have made the appeal on the merits of the case, ancl their failure to do so, was the cause of the other side, represented by , Mr Borlase, breaking the pledge which had been given. Prompt action followed. On the 18th of July, Mr Borlase, under cloud of night, contrived by a coup dc wain to I demolish the barricade ancl take possession of the wharf extension. Since then there has been a newspaper controversy amongst the lawyers as to the rights and wrongs of the proceedings, tmding in no satisfactory result. Meantime Mr George the representative of the contractors had' not been idle. Quietly and cautiously he had another barricade constructed afc Evans' Bay and on Saturday morning brought it across the smooth water of the harbor in his little steamer. A few minutes work by the active hands engaged were suflicient to pufc it up, and once more the wharf extensionhad reverted to the possession ofthe contractors. Now this act may, or may not, have been legiti-

mate on the part of Mr George, but at a » events he had only imitated the strateg = of the G-overnmont. Of the proceeding | which followed we cannot speak in th j same terms. Hitherto it had been a fai 1 contest between the Government on tiv one side and the agent of the contractor on the other. Now the former called ii , the aid of the civil power in the shape o the police. So far as we have been abh to ascertain after careful enquiry, the pro ceedings which ensued are as follows :— The Government were informed that the wharf had been again, barricaded anc thereupon issued to the Harbor Master to clear away the obstrue tion. Their case appears to be that wher the wharf was taken . possession of it at once passed under the control of the Harbor Master, and that official in virtue of tlio harbor regulations was entitled tc remove, any obstacle to the ordinary course of public business. This is all very well, but then there is such a thing as fair play and we cannot help thinking that tho Government did not afford it tc their opponents by their proceedings. The Harbor Master called in the aid of the police, and at 1 o'clock on Saturday seven of the force under the orders of Mr Inspector Atcheson and two sergeants marched down to see the barricade demolished. Two laborers armed with crowbars were ordered by Inspector Atcheson to break down the barricade, but it is clear enough that the police were there not to prevent a breach of the peace but to see that the work was done. The proof of this is to be found in what took place. The two men had commenced the work of demolition when Mr George asked by whose orders thoy were doing this. Mr Atcheson replied by telling them "fo go on and not be afraid, 1 ' seconding his instruction by pushing at the barricade, which was ultimately removed with the assistance of several mombers of the police force who were present. Now it is well known that throughout this dispute, in the conviction that the Government were right, we have supported their acts, and our objections to the recent proceedings are therefore made in a spirit of regret. It seems to us that the Government in the first place took possession of the wharf extension by statagem when their right to do so was a question in dispute. Possibly they were justified in doing so, by the unfair action of tho other side in declining to have the case argued on its merits, but everything considered, it was a fair act of retaliation on Mr George to resume possession. Up to this point we think both parties about equally justified, but when the Government on Saturday called in the aid of the police to carry out their purpose we think they were wrong. No douht, Inspector Atcheson and his men only acted according to their instructions, but what if those instructions were illegal? The duty of the police is to protect life and property, not to interfere without warrant of law, for the purpose of enabling a plaintiff to gain an advantage over a de- 1 fendant. While the question was in dis- j pute Mr George had as much right to call upon the police to protect him in defending his alleged property from the attempts ofthe other side to take possession of it, as they had to engage their aid. It was the case of several private individuals on the one side against a Governmeut on the other, aud we camiot see why the police should have been called in either by one party or the other unless I to prevent a broach of the peace. Nothing of the kind waa likely to have taken place on Saturday afternoon, and it was with infinite pain we saw the civil power brought to the assistance of one side, when, whatever were the legal rights involved, its aid would have been refused to the other.