THE HARBOR CRISIS.

Gisborne Standard and Cook County Gazette, Volume II, Issue 195, 13 September 1888, Page 3

THE HARBOR CRISIS.

MR DeLAUTOUR’S OPINION. Thebe was no meeting of the Harbor Board on Tuesday night, the Chairman being unwell, and the country members considering there should be time allowed to consider the position before takirg action. Those members who attended were Messrs Dickson, Townley, Matthewson, and Tucker. The importance of the legal opinion on the Act being so great, we consider it our duty to give the public the earlie-t opportunity of studying it, and issued the following opinion of the Board’s solicitor yesterday morning in the shape of an extra: — I am instructed to advise you as to the meaning and effect of clause 5 of the Gisborne Harbor Amendment Act 1884 Amendment Act 1888. To follow these instructions I am in some degree compelled to consider the scope and effect of the whole Act. Sections 10 and 11 of the Amending Act of 1887 limited the Board’s power to expend or pledge any of the loan, after the sum of £65,000 had been expended or pledged. The Act now passed purports to allow the Board to expend the further sum of £40,000 upon certain conditions — First—That the ratepayers of the Harbor district, with the exception of those whose property is in the ridings of the Waiapu and Tolagp, accept the liability to provide interest and sinking fund on one fifth of the whole (f.e.j £40,000) by the imposition of an unlimited rate to be levied upon all rateable property within the district, as thus restricted as a special rate. Second—That a majority both as to number and value of the ratepayers within the rek stricted district called in the Act the “ special ■ district,” who are actually on the ratepayers * roll, testify to their acceptance of liability by voting in favor of the proposal. If the ratepayers in the special district consent to the expenditure, then the interest and sinking fund on ; £40,000, that is, the annual sum of £2,400, shall be raised by special rates which the Board is authorised to make and levy in each year on all rateable property within the special district, subject to two provisions. It is material to notice that the ratepayers in the excluded portions of the harbor district are not recognised as having a voice in the matter, and obviously because so far they are relieved and the enacting part of the section does not impose a rate upon their properties, and gives no power to the Board to rat& outside the special district. The twoCprovisions are :— First—-The rate on rateable property within the Borough is to be double the amount of the rate levied on rateable property within the remaining part of the special district. Second—The interest on the balance of the loan (£160,000) is to be provided for by rate on the rateable property in the whole harbor district, inclusive of the ridings of Waiapu and Tologo Bay. It is noticeable that the first provision is totally inconsistent with the differential rate •uggested in the last proviso presently to be referred to. This is easily seen if the question be asked, Is the rate over Borough property to be double the rate levied over property in the Arai or double that levied if the proviso is Operative in certain circumstances in Tologa •” So far. and apart from the second proviso immediately to be noticed, there is no repugnancy. The provisos which are not provi■lons to which the enacting part of the section is subject, introduce all that is difficult in the interpretation of the Act. The first proviso is’eonsistent with all that has preceded it to the word “ together " in the 24th line. If this proviso read only as far as that word, and then stopped, it would present DO difficulty, and would at least be intelligible. The proviso reads, “ Provided that the rateable property within the special district shall be liable to he rated under the said Act or this Act in excess of the rate authorised by the said Act, so far as may be necessary to raise sufficient money to pay tuch interest and linking fund. The word “such” I have underlinedap. plies to the interest and sinking fund men. tioned in the eighth line, which is to be provided bv special rates. The following words are added “ together with its share of the interest and sinking fund on the balance of the said loan, including also the costs and charges of levying and collecting such rates.” As the interest and sinking fund on the balance cf the loan under the second provision is to be raised by another and independent rate, these words, if they have any meaning, must be read, I think, to make all property in the special district liable to an unlimited amount to find any portion of the sum re. qnired as interest‘’or sinking fund on the balance of loan (i.e., £160.000), which could not be found by the limited rate under the Act of 1884 as levied throughout the whole harbor district. If the words do not mean this they are meaningless. If a meaning can be given to them we are bound, out of respect tojthe Legislature, to assume such meaning Was the intention. The second proviso, as it stands printed, cannot in any way be brought into harmony with the enacting part of the clause. By some violence it can be made intelligible. The intention of the Legislature is manifested by the effort apparent to give that intention effect. Notwithstanding the enactment, the ratepayers in the special district are not to be specially rated unless the ordinary revenue is unable to pay interest on £200,000 (i.e., £lO 000 a year). It is manifest that this contingency must always happen, for ordinary revenue does not include rates levied to provide (interest and sinking fund, and will not meet expenses and annual contribution under *be Act of 1887. So then it follows that they are to be rated, and all rates so imposed on then to provide for tuck deficiency (i.e., £10,000) shall be so imposed in certain proportions between the special district and the other portion of the harbor district (i.e., are to be imposed upon them, and other persons now introdnced for the first time, who have had no voice in the proposed expenditure, and are not liable to be rated Under the enacting part of the clause). Assuming this to be possible, the special district is to contribute a rate in the proportion which 105 bears to 65, but the special district is to provide, in any event, the whole b-'anee required, whether in excess of its proportional quota or of the maximum rate in the Act of 1884. Although the proviso occurs after the enactment. I am of opinion it cannot be read to enlarge it. It is true that where a proviso is within the purview of the enactment, however repugnant it may be, it will control it even if its effect were to attenuate it altogether. Fere it is clear that the enacment liberates the Bidings of Waiapu and Tologa wholly except from contributing, in any event, towards interest and sinking fund nnon £40,000 of the loan. In accordance with this deliverance they are not to be committed as to the expen. ditnre. The provisions to which the enactment is subject do not contemplate such contingent taxation and are wholly repugnant with it. It is not. thereto; e, I think, possible by the proviso which is based upon an assumption Which has no existence to recreate a burthen, and by inference to empower the Board to impose such rate. It is, I think, clearltbat the Board is duly authorised to levy a special rate upon the rateable property in the special district, and that ii a poll is taken and a consent obtained it must levy such rate as is required to find £2.400 npon the rateable property in the special district alone. The’conclusions I arrivejat are—1. The Board is not compelled to take a poll of ratepavers, but without the consent of ratepayers obtained by such a poll its expenditure out of Loan Fund must now cease. 2, If the Board elects to take a poll and the ratepayers decline to sanction further expenditure the sum of £40,000 forthwith vests in the public Trustee, g. If a poll be taken the proposal must be carried by a majority in number of ratepayers actually on the roll, and by a majority In value of all rateable properties for bich such ratepayers are rated. Each ratepayer will give one vote only—and in this respect lection 20 Act 1884. will not apply. 4. If a poll is taken it will be important to fix it at a time when the roll can have been purged of vendors and dead persons, all of whom otherwise would count against the proposal. 5. It the poll results in the approval of the expen< iture, the sum of £40,000 is available tor such expenditure. 6. If the poll is postponed, the £40,000 can remain in the Board's hands, bearing deposit rates, until Parliament reoonsiders| the position.

7. If the poll is taken and the propose approved, a rate upon all rateable property in the harbor district, exclusive of property in Taloga and Waiapu ridings, must be levied, estimated to produce £2,400. It is not provided, but I think it may be assumed, that this rate would be for a period commo ting Ist of January, 1839. 8. A further rate must be levied over the whole harbor district (rateable property in the Borough paying a double rate) sufficient to produce interest on £160,000, i.e. £BOO9. (Sinking fund seems here to be strangely unprovided for. If it is to be deemed to be included, £l6OO must also be raised to meet its annual claim). In making this rate the maximum rate leviable in Tologa and Waiapu is to be regulated by the Act of 1884, and any deficiency is to be made up by levy upon the rateable property in the remainder of the harbor district irrespective of limitation. It must be presumed that this rate is to be for the period commencing January Ist, 1889. 9. Any surplus from ordinary revenue may be applied in aid of the rate leviable over the whole harbor district, but not in aid of the special rate to be levied upon the special district. This appears immaterial, as one-tenth part of overdraft advanced out of loan has to be repaid to the Public Trustee in each year under the sth section of the Act of 1887 and the 7th section of this Act, and it is certain that, given only the normal trade of the Port, unless wharfages and dues are raised to an unbearable point, ordinary revenue in any one year will not do more than pay ordinary charges and annual instalment of repayment'of overdraft. 10. Taking this view, it becomes important to consider what the maximum'rate is, which can be levied under the Act of 1884, After some hesitation, and while not free from doubt on the point, I am of opinion that the maximum rate in the County is Id, and the 25th clause of the Act of 1884 must be read as a proviso occurring later in the Statute, evidencing a deliberate intention to double the rate already limited to Id in the case of the Borough of Gisborne. 11. The saving clause to the Act of 1888 conserves the liability of the ratepayers of Tologa and Waiapu to the bondholder if there were a general-default in payment of interest. C. A. DkLautoub. Gisborne, 11th Sept., 1888.