21 JULY, 2 SEPTEMBER, 1869, 10 MARCH, 1870.

MANDER AND ANOTHER V. HUTTON (ON BEHALF OF COMMISSIONER OF PUBLIC WORKS).

CLAIMANTS' RELIEF ACT, 1853.-Port Wakefield Railway Act 25 of 1866-7-Act 11 of 1859.

The Port Wakefield Railway Act, 25 of 1866, empowered the Com-
missioner of Railways to construct a certain Railway. By Act 11
of 1859, the Commissioner of Public Works for the time being is
Commissioner of Railways.

In this case the Government, against whom this action was brought, had
asked for tenders for certain work on the Port Wakefield Railway;
and the contract, under which the plaintiffs had done the work sued
for, had been prepared by the Government, but never actually executed
by them.
In form it was made by the Commisioner of Public
Works, on behalf of the Government, had been acted upon by the
Government as if executed, and had been signed by the contractors
and their bondsmen. The specifications under which the plaintiffs
worked had been supplied by the Government.

It being contended that the Government could not enter into or be
bound by the contract, the Act directing the Commissioner of
Railways and not the Government to make the Railway.

Held--That the defendant was liable.

THIS was an action under the Claimants' Relief Act, No. 6 of 1853, brought by contractors on an alleged contract between them. selves and the Government. The contract, as set out in the

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SUPREME COURT. MANDER AND ANOTHER V. HUTTON. COMMON LAW.

declaration, was one whereby the Government employed the plaintiffs to construct certain works upon the Port Wakefield and Hoyle's Plains line of railway. Upon the trial before GWYNNE, J., at the June 1869 Civil Sittings, evidence was given which showed that although the written contract had never been signed by the Commissioner of Railways, yet it had been prepared by the Government, signed by the contractors' bondsmen, and had subsequently been acted upon and recognised by the Government. The specifications were produced, and also a set of "General Conditions for the execution of all Government works," from the custody of the Government when the contract was asked for. The agreement set out that the contract was made between the plaintiffs and the Commissioner of Public Works on behalf of the Government. The Judge directed a verdict to be entered for the defendant, on the ground that no action would lie against the Government for the breach of such contract, and that the action must be against the Commissioner of Railways or some one representing him.

21 July

Stow, Q.C., moved for a rule to set aside the verdict.-Although an Act has been passed giving the Commissioner of Public Works power to construct a particular railway from Port Wakefield to Hoyle's Plains out of funds to be provided by bonds, that did not prevent the Government from contracting in its own name for the construction of the works referred to in the Act; and if the Commissioner of Public Works entered into a contract on behalf of the Government they could not repudiate his acts. Even if entered into by him as Commissioner of Railways, an action would lie against the Government, or else contractors were remediless, because there was no provision in the Act that the Commissioner of Railways might sue or be sued either personally or by his Secretary. Even if there were, that would be only an alternative, as the Government were the ultimate principals, and therefore liable

The Queen v. McCann, L.R., 3 Q.B. 677.

A rule nisi being granted,

SUPREME COURT. MANDER AND ANOTHER V. HUTTON. COMMON LAW.

2 September

The Attorney-General (Strangways) showed cause.-The Port Wakefield Railway Act, No. 25 of 1866-7, conferred a statutory power upon a particular officer appointed to carry out the work— the Commissioner of Railways. The Legislature has provided funds to pay for it from a particular source, and it has already been held in a decision of the Court that the Commissioner might sue and be sued by his Secretary. All they had to show was that this was not "a case of dispute or difference touching any pecuniary claim between any subject of Her Majesty and the Colonial Government of South Australia ;" and neither the bond nor the evidence showed that the contractors had made any agreement with the Government, or that the Government were concerned in the construction of the railway. Nothing has been done under the Act in any way in opposition to the powers conferred upon the Commissioner of Railways. The Commissioner of Railways, under the authority of Act No. 11 of 1859, and the decision of the court in Hutton v. Hill was in precisely the same position in respect of suing and being sued, making contracts, and entering into agreements, as the Railway Commissioners were under the Act of 1855-6. The only ground for connecting the Government with the Commissioner of Railways was the provision in the Act that "the Commissioner of Public Works for the time being shall be Commissioner of Railways." But those duties were entirely distinct, and had no relation to the Government. The Act made the Commissioner of Public Works Commissioner of Railways, but he was not a member of the Government by virtue of being Commissioner of Railways, but through being Com. missioner of Public Works. To hold the defendant liable would decide that funds appropriated by Parliament for a specific purpose need not be so applied, but a simple refusal to make a proper appropriation by the officer entrusted with the duty would enable the General Revenue to be appropriated to purposes which the Legislature never contemplated nor authorized

Addison v. Mayor, &c., Borough of Preston, 12 C.B., 108 and

133

Tobin v. The Queen, 16 C.B., N.S., 347.

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SUPREME COURT. MANDER AND ANOTHER V. HUTTON. COMMON LAW.

Boucaut followed on the same side, and cited

Bush v. Martin, 33 L.J., Exch., 17

Hall v. Taylor, B. & E., 107.

Stow, Q.C., in support of the rule.-Although no written contract was signed by the Government, the agreement itself, the bond, and the general conditions proved on the face of them that the contract was entered into by the Commissioner of Public Works on behalf of the "Colonial Government." The evidence proved that the document was prepared by the Government, and recognised on their behalf by the Commissioner of Public Works, who did not profess to make the contract by the title of the Commissioner of Railways. It was no answer to say that the Commissioner had not authority to enter into the contract. He was one of the highest public officers recognised by statute, represented the Government in all matters affecting public works, and was held out as an officer with whom contractors were to deal with on the faith that he was authorized to enter into contracts for the Government. The Com missioner was not compelled by the Act to construct the Port Wakefield Railway out of any specific funds; he had power to apply public money for its construction, and there was nothing to show that the funds voted for public works had been expended, or that there was any difficulty in paying for it out of funds provided by Parliament; yet, if the Commissioner entered into a contract for the Government, for their advantage, was it to be said they were not liable? There was no remedy unless against them. The contract was for their benefit, and even if the Commissioner of Railways could have been sued, there would be a concurrent remedy against the Government. The Commissioner had no power of suing or being sued, under Act 25 of 1866-67, which Act merely conferred a statutory power upon him to carry out the work by means of public money, but no interest vested in him. The money for its construction was not placed under his control; but like other loans, was simply made use of by means of bonds as a matter of convenience in the Treasury, and the Treasurer had the sole control over it

Churchward v. Queen, 1 L.R, Q.B., 173

SUPREME COURT. MANDER AND ANOTHER V. HUTTON.

The Mersey Docks v. Gibbs, 1 L.R., H.L., 93
Story on Agency, s, 302

COMMON LAW

Gidley v. Lord Palmerston, 3 B. & B., 275

Macbeath v. Haldinand, 1 T.R., 172

Unwin v. Wolseley, 1 T.R., 674

Tobin v. The Queen, 16 C.B., N.S., 310

Allen v. Hayward, 7 Q.B., 960

Lloyd v. the District Council of Encounter Bay, 1 S.A.L.R.

121.

Brook followed on the same side.-The contract was entered into with the Commissioner of Public Works, and both parties have acted on the assumption that there was an express contract. Although under the Act of 1855-6 the Railway Commissioners had the power of suing and being sued, under the Port Wakefield and Hoyle's Plains Railway Act the Commissioner could not be sued either personally or by his Secretary, and that being so, to whom were they to look? The Commissioner of Railways and the Commissioner of Public Works had no separate existence, and it could not be said that the former ceased to be a representative of the Government in the carrying out of this work. There was no special fund provided for the construction of the railway-it was all charged upon the General Revenue and paid for out of it, and the 22nd clause of Act 25 of 1866 provides for certain improvements at Port Wakefield being made from the same fund. As the whole proceeds of the line went into the hands of the Treasurer, the Government were solely liable, and the relations which existed between the Commissioner of Railways and the Government were simply that of agent and principal.

Cur, ad. vult.

10 March, 1870

The judgment of the Court was now delivered by GWYNNE, J.The plaintiff was nonsuited upon the grounds that the proceedings under the Claimants' Relief Act were not appropriate to the circumstances of the case. It appeared to me upon the trial that the work for which the contract was made was not a work belonging to the Crown, but was managed under an Act of Parliament, which