THE EDWARDS CASE.

New Zealand Times, Volume LII, Issue 9318, 12 June 1891, Page 4

THE EDWARDS CASE.

THE OPINION OF THE JUDGES. On the 27th February, 1891, His Honor the Chief Justice entertained doubts as to the Governor’s power to appoint more than four Puisne Judges of the Supreme Court, except during pleasure. Subsequently the Chief Justice, finding that Judges of the Supreme Court had on several occasions been appointed before vacancies had actually taken place or a salary provided, felt it no longer necessary to press bis doubts to the extent of standing in the way of Mr Edwards acting as a Puisne Judge of the Supreme Court,

Subsequently the Chief Justice telegraphed to Mr Justice Denniston, saying that he seriously doubted that the Prime Minister had power to appoint more than the four Judges for whom salaries were provided. He asked for advice as to whether in his opinion the power to appoint judges was limited in law, and whether, if that were the case, he would not be compromised as a Judge by administering the oath ? Mr Justice Denniston, in reply, telegraphed that he thought it very doubtful if Section 5 authorised the appointment of Judges beyond four.

Mr Justice Richmond, in a telegram to the Chief Justice, said he wag of opinion that the power was not limited in law to the four Judges for whom salaries are provided. He considered the appointment without previous permanent provision for the salary, was open to objection on constitutional grounds. Mr Justice Williams, telegraphing to the Chief Justice, said, “I agree with you in seriously doubting authority. If appointment is not justified by law you could, no doubt, compromise yourself by administering oath.’* Mr Justice Conolly, in a telegram to the Chief Justice, was of opinion, " that the power to appoint permanent Judges is limited to those for whom salaries are provided by the Civil List." His Honor the Chief Justice, in sending to the Premier the memoranda by Mr Justice Richmond, Mr Justice Williams, and Mr Justice Denniston upon the cise, sail:—“Mr Justice Conolly informs me that he does not propose to make any further communication on the subject, as ho has not seen sufficient reason to change the views expressed in the telegram from him. For myself, though I still entertain the doubts I have always felt on the subject, I have not been able at this time to find sufficient leisure to write on the subject, but propose to do so as soon as possible.”

Mr Justice Richmond, in giving his opinion, said that the schedule to the Constitution Act, in providing the salary of one Pmsne Judge (the words “ Puisne Judge ” are in the singular) was to be regarded as fixing a minimum rather than a maximum. It said in effect that the Crown should have the right, without asking for a vote in supply, to pay LBOO a year to a Puisne Judge. It did not bar the appointment of an additional Judge or Judges; simply it left their payment unprovided for. It was altogether unsound to argue that the Civil List Acts, or any of them, operated to limit the legal number of Puisne Judges. The scope and purposes of those Acts was purely financial. On the whole, he concluded “that there is nothing on our statute book to show that, as a matter of law, the nppropriation cf a salary need, in the case of a judge, any more than in that of any other officer of State, actually precede the appointment.

Mr Justice Williams, in his memorandum, said : _At the lime Mr Justice Edwards was appointed to the Bench I expressed doubt ns to the validity of his appointment, I have since considered the matter, and now consider that tha appointment is legally valid, so os to enable Mr Justice Edwards to exercise jurisdiction, although no salary has been as yet appropriated to his office. Mr Justice Williams said he was of opinion that there was no legal restriction on the power of appointment given by section 5, and consequently that the appointment of Mr Justice Edwards was valid.