FURTHUR PAPERS RELATIVE TO THE DISALLOWANCE OF PROVINCIAL BILLS.

New Zealand Herald, Volume III, Issue 901, 3 October 1866, Page 5

FURTHUR PAPERS RELATIVE TO THE DISALLOWANCE OF PROVINCIAL BILLS.

PROVINCE OF AUCKLAND. No. 1. ITig Honor V. Whitnk-r to the Hon. E. W. Stafford. Superintendent's O!fioo, Auckland, 20th October, 185->. Sm, —I Imro tlio honor to transmit herewith authentic copies of tho Acts noted in the margin, which Acta have been passed by tho Auckland Provincial <"ouncil, and to which Hi-* Honor the lato Superintendent has assented on behalf of His Excellency tho Governor.—l have, «fic., P. WIIITAKEIt, Superintendent. Tlio Honorable tho Colonial Beerotary, Wellington. No. 2. The Hon. B. W. Stafford to His Honor F. Whitaker. Colonial Secretary's Office, Wellington, 29th November, ISGS. Sut, —I have to acknowledge tho receipt of your Honor's letter. No. 403, of the 25th ult., enclosing copies of two Acta, entitled respectively tho " City Board Lo in Act, No. 2, 1805," and " Wairoa Hoad Act, I860," passed by tho Auckland Provincial Council, and assented to by tho lato Superintendent of that Province on bohalf of tho Governor. I am constrained for tho following reasons to udviso tho Govornor to disallow these Acts. The City Board Loan Act passed the Provincial Council oil the 27th April, 1835, and was absented to iiy the Superintendent on the 12th May following, lie day after tlio prorogation of tho Council, and >vt\a only recoived by the Government on tho 3rd nstant. Tho Wairoi Road Act pissed tho Council on the :oth April, 3S(>o, was presented to thaSuperintendent 'or assent oil the Slat Alay, and was assented to tin he I? Ith ult., five months after the prorogation of tho jouncil, six weeks al'rer tho dissolution, and on tlio lay on which a new- Superintendent was elected. Tin; Constitution Act in this 2Sth section, prnvid-'s h.it copies of' Provincial Bills assented to shall bo i';nt "" to the Governor. In the ense of he Citv Loan Act this proviso has been utterly disvgarded, as more than live months wore allowed to ;lapso before that Act was transmitted. Although this circumstance might not of itself invalidate the Act, it manifestly requires notice. Moreover t'>e Act in question was asseuted to after ,ho prorogation of the Council. It is tho practice apparently founded on legal obligation) for tho Jrown to assent to Bills during the sitting of Parlia-lii-nt—a practice also adopted in tho Goueral Yssembly—livl. lookiug at the provisions contained n tiie Constitution Act, I ai:< advised that tho Superintendents ought to dochiro their assent or jtherwiso beforo the prorogation of tho Provincial Council. This latter observation applies, of course, with much gronter force to tho Wairoa Road Act. l'ho Attorney-General is of opinion that tho inctruc:i ms of tho Governor (issued to Superintendents of Provinces in 1857, and published in the Mew Zealand Sazetto, No. 12, of 2nd May, 1857) requiring Piwircial Loans Acts to bo reserved, apply to Acts empowering Municipal and other bodies to rsiso oanß on a mortgage of rates, <tr., as well as to Acts mipowering Superintendents to raise loans oil mort;age of Provincial rovenne. Tho City Board Loan Act does not provide that he loan is to bo raised under tho City Board Act, LSG3. 1 am aware that Bills of this kind have not, n tho caso of former Ci'y Boards Acts passed by the Auckland Provincial Legislature, been reserved, and, f the objection stood alono I should have been lisposcd to overlook it. Tho Wairo i Road Act is not, I am advised, framed vitli a due regard to tho provisions of the Highways ind Watercourses Act, ISSS. There should be no uch provision as that eontainod in the second section if tho Provincial Act. The Highways and Watcriourses Act providing that the Govornor may make Irown Grants in tho usual form, the provision in the ocal Act i-i unnecessary, and moreover, very objecionable, as it purports to empower the Governor to nako a Grant, to certain persons, "their heirs, exe:utors, administrators, ana assigns," and upon cerain trusts. Setting aside this somewhat extrairdinary provision as regards tho persons to vhom "the Grant is to bo made, it would bo highly nexpedient that tho Governor should be bound to naku Grants to private individuals upon trusts, nore particularly upon trusts not specified. It is nn t,hat the objectionable provision in the Wairoa load Act appears to be in conformity with the pro■isions of the Piversion of Roads Act, but in former Auckland Provincial Acts a grant in foe simple has icon provided for. This would not bo objectionable, hough unnecessary. 1 will also call your Honor's attention to t'nn t ict hat by the Act in question tho Orown would con■oy away the soil in tho stopped-up roul. Out that he fee simple of the soil in the new rond remains in ho former owner. It should bo considered whether ho foe simple in the land of the new road ought not 0 bo secure i as well as the right of way over such and —I havo, &c., E. W. STAVt'OED. His Honor the Superintendent, Auckland, No. 3. Sis Honor F. Whitaker to the Hon. E W. Stafford. Superintendent's Office, Auckland, 6th December, ISOS. p Ill( X havo the honor to acknowledge the receipt 3 f your letter of dato 20th November ult., informing me that you cannot adviso llis Excellency the Crovernor to asßent to the uity Board Loan Act, No. 2, 1865," and, th.o " Wairoa Road Act, 1805." — 1 have, „ „ Hnnn Cabluton, For tho Superintendent. The Honorable tho Colonial Secretary, Wellington. No. 4. His Honor F. Whitaker to the Hon. B. W. Stafford. Superintendent's Office, Auckland, Fobruary 3rd, 180 G. g [n _At the request of tho Provincial Secretary, I have fheihonor to forward a Memorandum which ho has written in reference to two Acts passed by the Provincial Council, and assented to by my predecessor, Mr. Graham. The question as to whether Acts can bo assented to by the Superintendent after tho prorogation of tho Council is ono of some importance, and it may be useful if it should again have to bo considered, that the reasons for an opposite opinion to that now held by tho Attorney-General should ho before him. Tlio disallowance of the !i City Loan Act, No. 2, 1805. referred to in the Provincial Secretary's Memorandum raises a question of immediate practical importance, as several other Acts of a sitrilar character have boen passed, and others will be required. Tho Auckland Loan Act, ISU3, authorises tho Superintendent to raise tho sum of £500,000, and this has boan done. The Bth section of tho Act prescrioes tho purposes for which tho monoy may bo expended, and declares that ".No'monoy raised under the provisions of the Act shall he paid or expended without authority of an Act of the Superintendent and Provincial Council." Tho City Board Loan Act was a special Act ptsssed in pursuance of this provision to appropriate a portion of the Loan already raised, and not for the purpose of raising one. I therefore, yespoetfully submit that it is no way opon to the objections made to it as a Loan Act. —I have, &c« Fred. Whitakek, Superintendent. M -morunilum by Mr. Carleton. In reference ta the Colonial, secretary's letter. No. 2611, announcing the disallowance of tlio City Loan Act No. 2, and the Wairoa Koad Act. 186y, passed before the advont of the present Superintendent to office, I desire to observo that none ot the objections taken by the Attorney-Genoral to the City Loun Act are in my opinion necessarily tatu] to that Act. The right of tho Governor to exercise his own discretion in tho matter of disallowanco is ot course unquestioned, I therefcro restrict the question to this point, namely, whether tho Governor was compelled, by reason of illegality, or non-com. plianco with instructions, to disallow. The Colonial Secretary writes as follows: Jnc Act in question was assented to aiti»r the prorogation of tho Council. It is tho practice (apparently founded on legal obliga ion) for tho Crown to as.-enl to Bills during the sitting of Parliament, a practici 1 also adopted ia tho Genoral Assembly, ana looking

at the provisions contained in the Constitution Act, I am advised that the Superintendents ought; de dure their assent or otherwise before the prorogation of the Provincial Council." I am unable to discover any "legal obligation," nor can I perccive the farce of any parallel drawn between the functions of a Superintendent, an officer elected by the people, and those of the Crown. Itis true that law* are made by the Gen eral Assembly in Parliament assembled, from which it appears to foilow that the Governor's assent must be given during session; but provincial laws are made by the .Superintendent of the Province with the advice nd consent of ilia Provincial Council thereof. 'J hat tulvieo and consent once obtained, no limitation is expressed in regard to time. Tha wording of the 18th section Constitution Act is clear and explicit. Jt must be admitted that other sections of that Act aro more loosely worded; for instance, tliu 19th section, by which it is enacted that it shall not "be lawful for the Superintendent and the Provincial Council to make or Jordain any law or ordinance" for'any of the purposes therein mentioned ; or sec. 53, which mentions laws made, not by the Provincial Legislature, but by the Provincial Council. Still No. 18, is, I think, manifestly the governing, section of the Act in rogard to this subject. It is, moreover, observable that the framer3 of the Constitution Act appear to have been careful throughout not to treat the Provincial Legislatures as Parliaments. In accordance with this view, is a dictum of a Judge of tho Supreme Court: That provincial laws mußt be received as bye-laws and proved. Tho Colonial Secrotary states, by way of further objection to the " City Board Loan Act." that the Hon. the Attorney-General; is of opinion that the instructions of the Governor (issued to Superintendents of Provinces, 1557, and published m the -V.Z Gazette of No. 12, May 2, 1557,) requiring Provincial Loan Acts to bo reserved, apply to Acts empowering municipal and other bodies to raise loans 3n a mortgage of rates, as well as to Acts empoWern<; Superintendent) to raise loans on mortgage of Provincial fteveuues. It seems to me that the Attorney-General must iiavo misapprehended the nature arid object of the Act in quest ion. Possibly the short title may have nisled. The " City Hoard Lean Act" is not an Act :o rai.su a loan, but to appropriate a loan already ■aisad under the Auckland Tjoan Act, ISG3. It is •imply an empowering Act, one of a series of Acts ifi in number, made in accordance with section IS of lie Auckland Loan Act, 18U3, tho first 17 of which tave beeu assented to on the part of the Governor. In regard to the ■' Wairoa Road Act" disallowed, I liavo merely to observe that it was not drafted by he Provincial Solicitor, nor transmitted by the Superintendent to the Council. It was introduced in leavo by a member of Council, a proceeding ipparently not contemplated (compare sections 2G ind 03) by the framerj of the Constitution Act. Hugh Cabletojt. January 26, 1866. Fho Hon. E. W. Stafford to his Honor F. Whitaker. ! Colonial Secretary's OiHco, Wellington, 19th February, 1860. j Sir, —I have the honor to acknowledge the reccipt >f your Honor's letter, No. IS2, of the 3rd inst. ransmitting, at tho request of the Provincial secretary, a Memorandum written by him in refermco to the (t City Board Loan Act, No. 2, 1505," nd the 11 Wairoa Road Act, 18G5," disallowed by iis Excellency tho Governor. In reply I have to state for the information of the Provincial Secretary, that the Hon. Attorneygeneral, to whom I referred your letter and its ncloKure, states that he can hardly think that it is ntended seriously to argue that the ordinary rules rhich regulate Legislative bodies are not applicable o Superintendents and Provincial Councils when nacting laws. Tho mere form lie observed in which the Governor nd Legislative Council and House of Kepresentaives make laws oilers no criterion whereby a distincion may be drawn in the respective power of iovernor and Superintendent. The whole question what is the intention of the Legislature, and he ■ hinks in clear that the declaration of assent or nonSaent is to be n.ado to the Council while sitting, nd in the session in which the Bill passed. Tho Attorney-General thinks that tho " City Joard Lojil. Act, No. 2, lS£io," did authorise the {card to borrow. It principally authorises i\ loan to ho Board, Dut thereby authorises tho Board to orrow. I have, &0., K W. Staffokd. Hia Honor the Superintendent, Auckland.