708 J. C. 1876 BELL v. RECEIVER OF REVENUE OF HOUSE OF LORDS [VOL. I. formity with the said Act, and that all moneys due in respect thereof had been received by him in cash, should be made absolute. The facts appear in the judgment of their Lordships. Mr. Fitzjames Stephen, Q.C., and Mr. J. D. Wood, for the Appellant, contended that he was entitled to purchase the Crown lands for which he applied at the rate of £1 per acre, which was the price fixed at the time when he made his application. That application was complete when a written application in the proper form for the land was, on the 7th of July, 1873, lodged with the proper officer of the Waste Lands Board, and an entry in the proper form was made in the application book. The Appellant thereby, on the 7th of July, 1873, acquired an indefeasible right to purchase the land at the rate of £1 per acre. He, on the proper construction of the Waste Lands Act, 1865 (see especially sects. 12 and 26), obtained a statutory right so to do: see Blackwood v. London Chartered Bank of Australia (1). Even if the Appellant's application ought not to be considered as having been made on the 7th of July, 1873, it ought to be considered as having been made on the next day, being the day on which the Board sat and might have considered the Appellant's application. Mr. Leith, Q.C., Mr. R. E. Turner, and Mr. Gilmour, for the Respondents, were not called upon. The judgment of their Lordships was delivered by SIR BARNES PEACOCK : In this case George Meredith Bell obtained a rule nisi calling upon the Receiver of Land Revenue of Southland, who is the Respondent in this case, to shew cause why a mandamus should not issue commanding him to receive from the Appellant payment at the rate of 20s. per acre for certain Crown lands which the Appellant had applied for or elected to purchase under the Southland Waste Lands Act of 1865, 29 Vict. No. 59. The Supreme Court after hearing the case made that rule absolute, upon which the Respondent appealed to the Court of Appeal for New Zealand, and (1) Law Rep. 5 P. C. 110. that order making the rule absolute was reversed. Mr. Bell now appeals to Her Majesty in Council against the decision of the Court of Appeal. J. C. 1876 BELL v. 709 RECEIVER OF The question depends upon the true construction of the Act, 29 Vict. No. 59, the Waste Lands Act of 1865. Sect. 6 is as follows: "There shall be established a board, called the Waste Lands Board, SOUTHLAND. to consist of one chief commissioner, and of not less than three nor more than five other commissioners, all of whom shall be appointed and be removable by warrant under the hand of the superintendent." By sect. 7 it was enacted that the Waste Lands Board should sit at the principal land office of the province at certain stated times, to be determined by the superintendent; and it appears by the second paragraph of the affidavit of the Appellant, that the days fixed were Tuesday and Friday in every week. Sect. 10 enacted that "all applications for land and for pasturage and for timber licences shall, after hearing evidence when necessary, be determined by the Board at some sitting thereof." Sect. 12, which is one of the important sections of the Act, enacted that "a book, to be called the 'application book,' shall be kept open during office hours at the land office, in which the name of every person desiring to make any application to the Board shall be written in order by himself or any person duly authorized on his behalf." According to this section, all that the applicant is to do is to write his name in the application book as a person desirous to make an application; and in this particular case the entry, which was made in the book on the 7th of July by Mr. Macpherson as the agent for Mr. Bell, was in the following terms:-" G. M. Bell per Wm. Macpherson, 7th July, 1873." He merely wrote the name and the date of writing it. The section goes on: "And the Commissioners shall, during the sittings of the Board, consider and determine all applications in the order in which they shall appear in the application book: Provided that if any person shall not appear himself or by some person duly authorized on his behalf before the Board when called in his turn, his application shall be dismissed until his name shall appear again in the book in order." A little confusion arises from the use of the word "application" in this section. The word "application" s referred to in the first portion of the section in this way, "every 710 J. C. 1876 BELL V. RECEIVER OF REVENUE OF HOUSE OF LORDS [VOL. I. person desiring to make any application." Then, in the second part, it is said that all applications shall be considered and determined in the order in which they shall appear in the application book. But the Act does not require the terms of the application LAND itself to appear in the book; it merely requires the name of the SOUTHLAND. person desirous of making an application, and the true construction of the word "applications" in the second portion of this section is, applications of the intention to make which to the Board applicants have given notice. Then the third portion of the section says, "Provided that if any person shall not appear himself or by some person duly authorized on his behalf before the Board when called in his turn," that is, according to the order in which his name appears in the application book—" his application shall be dismissed;" that is to say, unless he appears he shall not be at liberty to make an application. Nothing is said in the Act of delivering or lodging a written application, specifying the particular land for which it is the intention of the applicant to make application. It had been the practice of the Board (probably they had made some rule on the subject), as appears by the fourth paragraph of the Appellant's affidavit, to hear and determine only such applications for land as had been lodged with the proper officer of the Board at least the day previous to the day on which the Board met for the transaction of business. Now, the lodging of the application was not the presenting of an application to the Board; applications to the Board were not presented until the day of their sitting. In paragraph 5 of the affidavit it is said, "That at such sittings as aforesaid of the said Board, the applications for land were opened and considered in the order in which the applicants' names appeared in the said application book." It appears, therefore, to their Lordships that the 12th section of the Act merely required an entry in the book of the name of any person intending to make an application, and that it did not give him a right to have an application which he should afterwards present to the Board determined in any particular manner. He was to make his application to the Board, and bring his case within the law as it stood at the time when he came before the Board. Sect. 26 enacts that, "All lands not included in any of the foregoing regulations shall be J. C. 1876 BELL V. RECEIVER OF LAND REVENUE OF open for sale as rural land at the fixed price of 20s. per acre: provided always, that if at any time the superintendent and provincial council of the said province shall recommend the Governor to raise such price, then it shall be lawful for the Governor in Council, if he shall see fit, to raise such price in accordance with such recommendation." Now, by virtue of the 12th and SOUTHLAND. 26th sections put together, it is contended that when the applicant entered his name in the book as a person desiring to make an application, he obtained a vested right to have his case heard and determined, and to have the land at the price fixed by the Government at the time when he entered his name in the book as an intending applicant, and not at the price fixed by Government at the time when the application was made at the sitting of the Board. It appears, then, that on the 7th of July, 1873, Mr. Macpherson entered Mr. Bell's name in the book of applications. He says that on the same day he lodged applications. On Tuesday, the 8th, the Land Board sat. They did not arrive at his turn to make the applications. That meeting was adjourned, and at the time of that adjournment the application of Mr. Bell had not been reached. The Board sat again on the 9th, and on that day they again adjourned before the application of Mr. Bell had been reached. In the meantime, viz. on the 9th of July, 1873, an order had been made by the Governor in Council, according to the provisions of the Act, that the price of land should be raised from £1 an acre to £3 an acre; and on that same 9th of July on which the Board sat it was publicly announced by Mr. Baker, the inspector of surveys, and the chief commissioner of the Board, that the Government had made that order, and that the price of lands had been raised from £1 to £3 an acre. Mr. Baker says, "That previous to the granting of any of the said applications, to wit, on the 9th day of July, 1873, I, this deponent, produced and read publicly, in the hearing of all persons present at the meeting of the Waste Lands Board, and, I verily believe, in the hearing of the said William Macpherson, a telegram from his Honour the superintendent of the province of Otago, to the Receiver of the Land Revenue, announcing that by an order in Council the price of land had been raised to the sum of £3 per acre." Mr. Bell did not present his application on that 3 3 C VOL. I. J. C. 1876 BELL v. REVENUE OF day, because, according to the order in which his name appeared in the application book, his turn had not arrived. He received notice on the 9th that the price of lands had been raised from £1 RECEIVER OF per acre to £3 per acre. Having had that notice on the 9th, he LAND at the sitting of the Board on the 10th, when they reached his SOUTHLAND. turn, presented his application to the Board for the first time, and they then determined that he was entitled to purchase the land. No price was fixed in his written application; no price appears to have been specified by the Board. They granted his application, and in effect said, You are entitled to have these lands at the price which has been fixed by Government. Notwithstanding the price was £1 an acre when he entered his name in the book as intending to make an application, he had been informed on the 9th that the price had been altered, and he presented his application to the Board after that notice. It appears to their Lordships that the grant of the application was merely the grant of an application at the price which had then been fixed by Government, namely, at £3 per acre; and that the Appellant, Mr. Bell had no right to have his rule nisi for a mandamus made absolute to command the Receiver of Land Revenue of the district of Southland to receive payment at the rate of £1 per acre. Under these circumstances, their Lordships are of opinion that the decision of the Court of Appeal was correct, and they will humbly recommend Her Majesty to affirm their judgment, and to dismiss this appeal with costs. Solicitors for the Appellant: Townley, Gard, & Corbin. |