The Hokitika & Greymouth Tramway Company
Hokitika: Printed by Reid & Co., West Coast Times Office. MDCCCLXXVI.page break
The Directors of the Hokitika and Greymouth Tramway Company, in placing before the public the accompanying particulars of their law suit with the Government of the County of Westland, are actuated by a desire to convey to the minds of their readers a true statement of the difficulties with which they have been surrounded for years past, in the adjustment of their claims for compensation, and have therefore endeavoured to collate a brief summary of facts, in order that a correct opinion may be formed of their position and the severe losses which have been sustained by them in their relations with the Government of the County of Westland.
The Hokitika and Greymouth Tramway Company's line, extending from Hokitika to Arahura, and thence to Stafford—a distance of about nine miles—was constructed at a cost (including rolling stock) of some £12,000. The Company received protection from the Government of the County of Westland under the hand of C. Hoos, Esq., the then County Chairman and Governor's Delegate, under certain regulations, previously published in the County of Westland Gazette, and hereunder copied:—
24th March, 1869.
"Regulations under which Tramway Companies may receive protection from the Government of the county of Westland.
"1. Every application for protection to a Tramway shall be published in the County of Westland Gazette, and at least three times in a newspaper circulating in the district in which the proposed tramway is to be situated, during a period of twenty-one days, before such application shall be decided upon. "2. Along with such application shall be published a notice to all persons who may have any objections to prefer to the granting of the application, that such page 6 objections must be made in writing to the Chairman of the County Council within the twenty-one da; specified. "3. On the day fixed by the Chairman of [unclear: the] County Council for deciding any application for [unclear: protection] to a tramway, any objection which may had been preferred to such application shall be heard as decided. If no objections be over-ruled, or if no objections be preferred, protection shall be granted [unclear: for] ten years, subject, however, to the following [unclear: conditions]:—
"I. That copies of all plans and specifications [unclear: shall] be furnished to the County Engineer, who [unclear: shall] report upon the same, and submit them to [unclear: the] Chairman of the County Council. "II. That the work shall be completed to the [unclear: satisfaction] of the County Engineer, in compliance with the plans and specifications approved [unclear: to] him, and sanctioned by the Chairman of the County Council. "III. That all rolling stock shall be approved of the County Engineer. "IV. That the tramway shall be maintained in an efficient condition, and that on all occasion such repairs or alterations shall be made [unclear: as] County Engineer may consider necessary the safety of the public. "V. That the scale of charges shall in each [unclear: case] subject to annual revision. "4. When protection is granted to a tram [unclear: way,] protection shall give the owner or owners the right occupy not more than half a chain in width of [unclear: gro] along the length of the line, and areas, not, exceeds one acre, for station purposes, at convenient place along the line.page 7 "5. A guarantee of not less than eight per cent, may be given by the Council to any tramway company complying with the above conditions, and the resolution passed by the Council on the 23rd day of June, 1868 (excepting clauses 2, 3, 4 of such resolution). The company so guaranteed shall be authorised to levy tells on all traffic along the line, except on foot passengers. "6. All existing tramways may be brought under the above conditions, and obtain protection for the above-named period of ten years: Provided that in no case protection be granted to any tramway company competing with any existing line within a distance of five miles. "7. In the event of a Government road being opened, which shall compete with any tramway to its detriment, such compensation as the Council may deem fit shall be given to the owners of the tramway so injured.(Signed)
C. Hoos,Chairman of the County Council."[Copy of Protection.] "Hokitika,
May 14th, 1869.
"I, Conrad Hoos, Chairman of the County Council of the County of Westland, do hereby give notice that I have granted protection to the Hokitika and Greymouth Tramway Company under the regulations made by the County Council, and published in the County of Westland Gazette, No. 7, of the 24th March, 1869, or their line of tramway from Hokitika to Stafford Town, being a distance of about nine miles; and, also, that I have authorised the collection of the tolls specified in the Schedule hereto annexed, by the said company, for the period of one year, from the first day page 8 of May, 1869: Provided that the Government [unclear: may] should it be deemed advisable, construct a road which may cross the line of tramway, or run parallel to [unclear: the] same for a distance of one mile, without being liable [unclear: to] pay compensation to the Company. The protection date from the first day of May, 1869.
"Given under my hand at Hokitika this sixth [unclear: day] of May, one thousand eight hundred and sixty nine.(Signed)
Then follows schedule of tolls and charges, [unclear: which] with the line and plant were previously passed [unclear: a] approved of, and which powers the [unclear: Government] continued to exercise over the affairs of the Company until the latest period of its working.
The enterprise was regarded by all classes as a [unclear: great] boon to the community in providing easy and safe [unclear: mode] of conveyance to and from the rich goldfields of [unclear: the] district, and, moreover, by materially reducing [unclear: the] of the necessaries of life, which had been previous conveyed by means of pack horses at [unclear: a] of £10 per ton, but which the Company at [unclear: as] reduced to £2 10s per ton.
The tramway line also formed a [unclear: highway] equestrians and pedestrians, and was largely [unclear: used] the purpose without any charge being made to; latter, although several costly bridges had to be [unclear: maintained] over many dangerous creeks where [unclear: the] public safety had been frequently endangered for the [unclear: want] such bridges.page 9
The Company, relying so implicitly on the good faith of the Government protection granted for ten years, when in complete working condition leased their property to Messrs. Cheffings & Whitten for a period of twelve months, ending November 10th, 1870, at a nett annual rental of £2600, with improving clauses valued at least at another £200, besides they, the lessees, having to keep the line and properties in a thorough state of efficiency and repair; but owing to the opening of a road running parallel with the Company's line, only a few chains apart, to the Arahura, a distance of 4½ miles, during the year 1870, the lessees abandoned their lease; and on the 14th September, 1870, the Company, after calling for fresh tenders, had to submit to a loss of £10 per week on their previous lease, and for several months prior to the opening: of the Stafford portion, or entire length of the road, which took place on the 13th February, 1872, a further loss of £22 per week was sustained.
It is here proper to remark that Messrs. Cheffings and Whitten stated in evidence before the Commission, that had the Government not have made the road they would willingly have given £60 per week for the line, equal to £3120 per annum, thereby proving what a valuable property the Company possessed. It must be further borne in mind that from the commencement up to the present time the Stafford, Waimea, and surrounding districts support a large and prosperous page 10 population, and therefore the Company had every [unclear: right] to expect their property would maintain its [unclear: profitable] character to the end of the term of protection.
The Company ceased operations altogether early March, 1872—about six weeks after the opening the road—for after working the line for that [unclear: period] they discovered they were losing fully £16 per [unclear: week] and found by sad experience that, instead of [unclear: enjoy] an uninterrupted protection for ten years, [unclear: they] had only enjoyed a partial protection of [unclear: some] years and ten months. This truly disastrous [unclear: res] rendered the hitherto valuable property a mere [unclear: auction] chattel. The large terminus buildings at Hokitika, [unclear: as] well as the hotel property, also became valueless consequence, the latter having always commands high rental, and was not part of the property leased Messrs. Cheffings & Whitten; and several of the enterprising shareholders were brought to the [unclear: ve] of ruin through the sudden termination of the Company's affairs and the depreciation of the value of [unclear: their] investment.
The County Government was petitioned from the date of the first interference session [unclear: by] session a tending over a period of four years; but, [unclear: while] admitting their liability and recognizing the [unclear: justice] the claims made by the Company, still [unclear: they] seemed unable to come to a settlement; but after receiving page 11 last report in 1873 of one of the many Committees appointed from time to time on the subject, of which the Hon. H. H. Lahman was Chairman, the last clause of which report reads as follows—" The Committee therefore beg to report that theyare unanimously of opinion that compensation should be given to each of the Tramway Companies, but are not able to agree to the exact amount of compensation to be given in each case, and would therefore refer the matter to be dealt with by the whole Council," the Council finally arrived at a unanimous resolution—"That the General Government be requested to appoint a Judge of the Supreme Court of the Colony, and the matter to be by him decided in equity."
Thus far it is to be observed that the Westland Government in affirming the foregoing resolution were actuated by a strict sense of their duty and the justice of the claims, and evidently desired that the matter should be settled solely on the equities of the case, which would have been binding, providing they had been practicable, or the course assented to by an Act of the Legislature.
The Company also recognizing the importance of the resolution urged upon the General Government to accede to the County Council's request, because they could with confidence rely upon the issue if the case was dealt with in the manner proposed. The following page 12 is a copy of the reply received by the Company [unclear: from] the General Government on the occasion:—
"Colonial Secretary's Office, Wellington,
12th May, 1873.
"Sir,—I have the honor to acknowledge the [unclear: received] of your letter of the 5th instant, in which, by [unclear: direct] of the management of the Hokitika and [unclear: Greymo] Tramway Company, you request the Government accede to the resolution arrived at by the [unclear: Com] Council of Westland in its last session with [unclear: respect] to the settlement of the claims of the above Company by having the matter referred to a Judge [unclear: of] Supremo Court of the Colony and to be [unclear: by] decided in equity.
"In reply I am directed to inform you [unclear: that] Government are advised that the resolution of [unclear: the] County Council cannot be acceded to. If there [unclear: is] equitable or legal claim the claimants can make [unclear: it] the Supreme Court in the ordinary course of law.
"If the claimants desire that the question [unclear: should] be decided upon other than legal grounds, they [unclear: and] County Council might refer the matter to the arbitration of some persons of position not connected with County. There are many persons who could [unclear: display] of such questions equally as well as Judges of the Supreme Court; at any rate the matter cannot decided by those Judges unless in the ordinary [unclear: come] of law, or under an express statute imposing [unclear: the] on them.
I have the honor, &c.,(Signed)
G. S. Cooper,Under Secretary.
The Company, still relying on the good faith of [unclear: the] Westland Government, and fully entertaining [unclear: the] page 13 belief that repudiation would not be resorted to in order to deprive them of the strong moral as well as apparently legal right they had to substantial compensation, decided that the case should be tried in the Supreme Court as suggested by the General Government, The defendants, when the first steps were taken, agreed to waive the legal technicalities and aspects of the case, which only hinged on the fact that the County Council had no right to enter into contracts of the nature contained in their regulations published in the County of Westland Gazette, whereby these various tramway companies honestly believed they had been legally protected, and by which they had been induced to expend their capital in works of public utility.
The Company therefore applied for a change of venue so that an unbiassed verdict might thereby be obtained—a course which contained in itself the elements and spirit of the resolution of the County Council, as well as the suggestions contained in the letter of the General Government on the subject of such resolution.
"For the defendants to plead non-indebtedness would simply be repudiation, and he hoped the day was far page 14 distant when any portion of the New Zealand [unclear: Government] would have to resort to such means to [unclear: real] themselves of their just debts."
After a lengthy and expensive commission, [unclear: extended] over many weeks, had sat and taken evidence Hokitika, the case was tried at Nelson, before [unclear: June] Richmond, in January, 1874. A special jury of most influential business men of that city having [unclear: be] empanelled, they, after mature deliberation, and case having been fully and most ably argued, return a verdict for the plaintiffs—Damages generally £1.5,5 A verdict which must be admitted to be by all [unclear: ring] thinking persons just in every particular, seeing the plaintiffs had been deprived of seven and [unclear: a] years of protection, which fairly estimated would [unclear: have] returned at least £20,000 to the Company.
Then, to the discredit of the Westland Government be it said, was advantage taken of the strict [unclear: l] position which mere chance alone had thrown in [unclear: the] way. The defendants moved for an arrest of judgement thereby ignoring their previous honest [unclear: intentions] tacit understanding of abiding the result of the [unclear: tr] stultifying their previous acts; thereby displayed subtle and dishonorable course of proceedure, [unclear: which] if adopted in commercial life, would sully the [unclear: fa] fame and bring upon the perpetrators the [unclear: contu] which a departure from integrity of purpose should produce.page 15
The case was again argued at Hokitika before Judge Rchmond iu banco, when His Honor ruled—That as the Company did not keep the line working, even at a loss, which loss should be charged the County, they (the plaintiffs) had not carried out their part of the contract, and therefore had no claim for compensation.', A ruling, the law of which, pregnant with many responsibilities and involving grave considerations by placing the Tramway Company in an exceptional position as regards the general and accepted observances which regulate the principles and policy of sound and prudent adventure, and which also implied a contract on the part of the Company which the Westland Government by a legal quibble sought to repudiate or act aside.
The Court of Appeal, to which the case was now referred as the last alternative in law, ruled that the implied contract was ultra vires; that the Westland Government was incapable of contracting; that it possessed in fact in some respects less power than a Road Board; thereby showing that the sole security which the public creditor could expect from the Government in question was public faith secured on a bubble reputation. A position to be regarded with pery grave concern that any portion of the Government of the Colony of New Zealand so constituted could legally free itself from its responsibilities at the sacrifice page 16 of honesty and good faith, and thus imperil and [unclear: dest] public credit and confidence in the good government of the future.
This vexatious law suit—which had been induced every respect by the Westland Government in [unclear: admit] their liability, in recommending compensation, appealing to the General Government for a Judge the Supreme Court to decide the case in equity—the plaintiffs no less a sum than £1500, all of [unclear: whi] large amount was the whole and sole proceeds of [unclear: the] once valuable plant, as well as private advances a by some of the shareholders, and which might [unclear: have] been saved if the defendants had adhered to the repudiation plea from the first; because the [unclear: plain] knew that if that plea was argued they had no [unclear: occas] to go to law, as they had obtained the best opinions procurable on that point.
After severe animadversion and condemnation the defendants by a large portion of the Press of Colony, the newly organized Provincial Council Westland in 1875 again took these tramway [unclear: chi] into consideration, appointed a Select Committee report, and, after deliberating at great length, [unclear: fin] recommended that the Hokitika and Greymouth [unclear: Tr] way Company should receive some 6400 acres [unclear: of] as compensation, valued at £1 per acre. A settlement at the rate of about 8s. in the pound on the verdict [unclear: whi] page 17 an unbiassed and disinterested jury of the most influential men in Nelson had returned for the plaintiffs. A settlement, in point of fact, the money value of which it would be difficult to assess, seeing that thousands of acres of land have been sold by the Westland Waste Lands Board from time to time at 10s. per acre.
In calmly and dispassionately reviewing the whole history of the case it must be admitted that the Company from the first has been wantonly trifled with; that the Westland Government has acted a shabby but, successful part throughout, traducing to a greater or less extent the high character of British law, which should be above reproach in matters relating to civil rights, where the intention bears at lest the interpretation of good faith, and where fraud is not implied.
The exercise of private enterprise at a time when no public money was forthcoming to promote public convenience, and which enterprise was encouraged by the existing authorities, and previously by the Canterbury Government prior to the separation of Westland, would indicate at least on the part of any Government a desire to grant special privileges; nor would public opinion gainsay such a course in granting permanent rights and providing against the contingency of infringement, more particularly as the enterprise was the means of developing one of the best gold mining districts on the West Const, without which its pros- page 18 perity would have been materially retarded, [unclear: and] public and the Government would to a greater [unclear: or] extent have suffered thereby. It must also be [unclear: borne] mind that at the time the Tramway was [unclear: construction] money was of great value in Westland, and [unclear: co] easily be invested in good securities, on mortgage otherwise, to realize interests varying from twenty to fifty per cent.
It would be a matter of regret to argue that regulations and subsequent protection published in County of Westland Gazette were intended as a; [unclear: g] deception on the public, and that the Westland Government were cognizant of their true position, [unclear: and]fore yielded to the temptation of deceit in the [unclear: de] they had to promote the public good; and it should certainly be conceded that it was the duty of the [unclear: pepole] moters of these many enterprises to inquire into fidelity of intention or the legal right which [unclear: this] constituted County of Westland Government assume before they embarked their capital in these [unclear: treach] undertakings.
If such were the conditions imposed upon a [unclear: per] by the morality of its Government, then it [unclear: would] for the public to prevent confusion and step in as arbiter of honesty and sincerity of purpose [unclear: in] relations one with the other; but if on the [unclear: other] such conditions are not imposed or implied, it been page 19 clearly the moral and righteous duty of such Government to act strictly in accord with the dictates of right, by maintaining a position above suspicion and above approach.
Although the Company failed to get justice done at the lands of the Westland Government through dis-editable tactics, they still have faith that the General Government of New Zealand will not allow this disgrace any longer to attach itself as a weighty argument against the bona fides, of any portion of its Government, and that during the sitting of the Legislative Assembly of 1876 the matter will be finally dealt with in the truest spirit of justice, and of equity.
Printed by Reid and, Co., Weld-street, Hokitika.