MEMORANDUM ON THE VALIDITY OF PROVINCIAL ORDINANCES, BY THE ATTORNEY-GENERAL.

Appendix to the Journals of the House of Representatives, 1871 Session I, A-07

A.—No. 7.

MEMORANDUM ON THE VALIDITY OF PROVINCIAL ORDINANCES, BY THE ATTORNEY-GENERAL.

PRESENTED TO BOTH HOUSES OF THE GENERAL ASSEMBLY, BY COMMAND OF HIS EXCELLENCY.

WELLINGTON.

1873.

A.—No. 7.

Title of Act or Ordinance, and subject-matter of Sections. Remarks. AUCKLAND. The City Board Act, 1863. No. 7, Sess. XV. Sees. 16, 17, 18, 19. Provide that on any complaint being made It seems that it is questionable, touching the validity of an election, Select Committee of and as constituting a Court, Board shall hear and decide, and grant costs. I think is invalid. Sec. 51. Justice may take declaration of valuer. So far as this gives power to Justices of the Peace it is ultra vires, but Justices have power without. Sec. 56. Power to recover rates before one Justice of the Peace Ultra vires. (Bagge v. Sinclair.) at suit of Collector, or other person appointed by Collector. Sec. 57. Rate-book to be evidence. Ditto. Sec. 58. Justice of the Peace may summon any person quitting Ditto, property before paying rates to show cause why they should not bo paid, and to issue distress warrant. Sec. 65. Provision appointing Chairman of Board to sue. Questionable whether power to Chairman to sue is not altering the practice of the Court and ultra vires. Sec. 116. Production of Gazette containing by-laws to be evi- Questionable. dence. The City Hoard Act 1863 Amendment Act. No. 6, Sess. XVI. Not objectionable in itself, but only as dependent upon objectionable clauses in other Acts. The Citi/ Board Act 1863 Amendment Act, No. 2, 1565. No. 4, Sess. Ditto. XVIII. The Highways Act, 1862. No. 5, Sess. XIV.* Sec. 20. Trustees appointed under Act to hear objections to This is probably not ultra vires, assessment. as it does not appear that trustees are to proceed judicially. Sec. 21. Appeal may be made to nearest Resident Magistrate Ultra vires. (Bagge v. Sinclair.) or two Justices of the Peace. Sec. 22. Costs to be awarded by Resident Magistrate or Justices Ditto. of the Peace. Sec. 24. Power to Collector to sue. Ditto. Sees. 28, 29, 30. Giving a power to register a memorial of a Appears highly objectionable, if rate, and to charge the laud thereby, and money stated in not ultra vires, as legislating memorial may be recovered by trustees. on a subject which is considered one for the General Assembly. Sec. 46. No Resident Magistrate or Justice of the Peace to be Ultra vires, as altering the pracincapacitated from doing any act by reason of interest. tice of the Resident Magistrate's Court. The Highways Act, 1867. No. 9, Sess. XX.f Sec. 25. Trustees appointed under Act to hear objections to This is probably not ultra vires, assessment. as it does not appear that the trustees are to proceed judicially. * It is believed that this Act is not now in operation. The Act of 1867 repeals it as to districts then existing, but the Act of 1867 does not come into operation in new districts until proclaimed. It is presumed that the Act of 1867 is virtually the only Act in existence. f This Act provides for alternative rate on acreage or Talue to sell.

MEMORANDUM ON THE VALIDITY OF PROVINCIAL ORDINANCES.

A.—No. 7.

MEMORANDUM ON THE VALIDITY

4

Title of Act or Ordinance, and subject-matter of Sections. Remarks. AUCKLAND— continued. The Higlnvays Act, 1867 —continued. See. 26. Appeal may be made to nearest Resident Magistrate Ultra vires. (Bagge v. Sinclair.) or Justices of the Peace. Sec. 27. Costs to be awarded by Resident Magistrate or Jus- Ditto. tices of the Peace. Sec. 30. Giving power to Collector to sue in summary way before Ditto. Resident Magistrate, and to recover by distress. Sec. 37. No Resident Magistrate or Justice of the Peace to be Ultra vires, as altering the pracincapacitated from doing any act by reason of interest. tice of the Resident Magistrate's Court. Sec. 49. Giving power to Superintendent to impose and levy Objectionable so far as it incorrates. porates clauses to which objection has already been made. The Thistle Act, 1858. No. 5, Sess. VIII.* Sec. 6. Confers power on Resident Magistrate or two Justices Ultra vires. In contravention of of the Peace to make an order authorizing person appointed 19th section of Constitution under the Act to enter upon land and eradicate thistles, Act. and Resident Magistrate or Justices of the Peace to have power to make order for payment of costs occasioned by eradicating thistleß. The Impounding Act, 1867. No. 10, Sess. XX. Sees. 21, 22. Power to Justice of the Peace to make order to Ultra vires, altering jurisdicsell cattle. tion, practice, and procedure of Resident Magistrate's Court. Sec. 27. Resident Magistrate, or two Justices of the Peace, Ditto, have power to summon owner of cattle having trespassed, and to determine matter of complaint. Sec. 30. Gives power to any Justice of the Peace to replevy. Ditto. Sec. 31. Power given to Justices of the Peace to make order as Ditto. to damages and costs, or delivery of cattle, and as to sale. The Sheep Act, 1863. No. 14, Sess. XV. Sec. 7. Owner of sheep may appeal against decision of In- Ultra vires, as altering jurisdicspector that they are diseased, to the nearest Resident tion of Resident Magistrate. Magistrate, who shall determine same in summary way. Sec. 21. Imposing penalty not exceeding £5, on every sheep set Whether, as it is not clearly at large contrary to provisions of Act. provided the setting at large of each sheep is to be a separate offence the provision is not ultra vires, is open to question. The Diversion of Soacls Act, 1863. No. 2, Sess. XV. This Act appears now in conThis Act provides for shutting up roads and taking private lands flict with the provisions of for roads, and compensating owners of lands. " The Highways and Water Courses Act, 1858," and • . " The Compulsory Land Taking Act, 1866 ;" it should be repealed. The subject is provided for and regulated by those Acts. The Auckland Municipal Police Act, 1862. No. 10, Sess. XIV. Ultra vires. Sees. 2, 5,15. Give jurisdiction to Magistrates to order abatement of nuisances. Doubtful validity, as limiting the Sec. 8. Provides that informations or complaints be laid by par- number of persons by whom ticular persons. informations should be laid. The Auckland Rural Police Act, 1866. No. 11, Sess. XIX. (Misprinted in Schedule to Act of 1867 as No. 2. Sec. 4. Power to Constable to take recognizance. Sees. 5, 6. Constable may discharge prisoner if accuser declines Questionable validity. to enter into recognizance. * It seems the object of the Provincial Legislature would be obtained by imposing a penalty of say £100 for not eradicating thistles, after notice from some officer or authority empowered.

OP PROVINCIAL ORDINANCES.

5

A.—No. 7.

Title of Act or Ordinance, and subject-matter of Sections. Remarks. AUCKLAND— continued. The Auckland Rural Police Act, 1866—continued. Sec. 10. Police to lay information. Questionable validity,as limiting the number of persons by whom information should bo laid. The Distress Act, 1866. No. 3, Sess. XX. Provisions for restraining for rent. The subject-matter is provided for by the Distress and Replevin Act of 1868, and the provisions which are ultra vires are quite unnecessary. This Act should and may withoutinconvenience be repealed. The Turnpike Act, 1866. No. 12, Sess. XIX. (Printed in Schedule as Sess. XX., No. 4.) This Act gives power to erect turnpikes and levy tolls on public There seem to be no provisions roads. ultra vires. The Turnpike Act Amendment Act, 1866. No. 4, Sess. XX. Amends exemption clause in " Turnpike Act, 1866," No. 12, Ditto. Sess. XIX. TARANAKI. The Roads and Bridges Ordinance, 1858. No. 1, Sess. VI. Ultra vires. (Bagge v. Sinclair.) Sees. 26, 27, 28. Power to Provincial Treasurer to sue for rates, and purport to give power to recover rates in a summary way before a Justice of the Peace, and making the amount leviable on the goods on lands rated. Sec. 29. Provides that rate-book be evidence. Questionable, as altering the law of evidence or practice of Courts of Justice. Sec. 30. Superintendent authorized to sell land for rates six Unnecessary, and contrary to months in arrear. provisions of " The Sale for Non-payment of Rates Act, 1862." Sec. 43. Affects to give power to recover before Resident Magis- Ultra vires. trate expenses of trimming live fences without limit to amount. Sees. 53, 54, 55, 56. In proceedings by and against Board, Ultra vires, as altering practice Chairman or Clerk, as nominal plaintiff or defendant, may and procedure of Courts, represent Board. Sec. 58. Provides that convictions made under the Act shall Ditto. And the matter has not be void for want of form. been sufficiently provided for by Acts of General Assembly. Sec. 60. Which provides that nothing in the Act contained shall This is an ingenious attempt to be deemed to alter jurisdiction of any Court, save such as are bring the clauses above pointed of summary jurisdiction (which, it is supposed, means pro- out as ultra vires within the cedure) ; and that in civil cases the provisions of the Ordinance powers conferred by "Tho altering the jurisdiction of Courts of summary procedure shall Provincial Councils Powers extend only to cases not exceeding £20. Act, 1856; " but it fails, because that Act does not give a power to alter the jurisdiction and practice of Courts of summary procedure generally, but only of summary Courts having jurisdiction up to £20. The Town Board of New Plymouth Ordinance, 1863. Nothing ultra vires. Road Districts Loan Ordinance, 1868. Sec. 4. Board of Commissioners of Road District may mortgage Ultra vires, as altering practice rates. If mortgage be not paid, power is given to Supreme and jurisdiction of Supreme Court to apply for order on Provincial Treasurer to pay out Court, of rates. 2

A.—No. 7.

6

MEMORANDUM ON THE VALIDITY

Title of Act or Ordinance, and subject-matter of Sections. Remarks. HAWKE'S BAT. The Sheep and Scab Amendment Act, 1867. Nothing objectionable in this Act. The Hawke's Bay Sheep Act, IS7O. Sec. 13. Empowers two Justices of the Peace to order muster Ultra vires. of sheep on cause being shown. Sees. 20, 21. Authorize two Justices of the Peace, on hearing Ditto, information, to order an Inspector to take such measures as he thinks fit. Sec. 24, and subsecs. 2,13. Under these subsections a penalty If penalty over £100, ultra vires. of over £100 might be imposed. The Licensed Victuallers Act, 1870. This Act establishes a Court for hearing application to Justices Ultra vires. for certificates, authorizing issue of licenses to them, and objections against the granting of such certificates, and also empowers the Court in certain events to order transfer of licenses; and throughout the Act it purports to give to Resident Magistrates' Courts and Courts of Petty Sessions various powers with regard to making orders in relation to licensed purposes. WELLINGTON. An Act to make further provisions relative to Fencing within Districts of the Province. No. 13, Sess. I.* The Fencing Act, 1867.f Sec. 16. Powers conferred on tribunal of arbitrators to deter- Seems ultra vires as constituting mine disputes. a tribunal or Court of Judicature. An Act to establish and regulate Markets. No. 12, Sess. I. Sees. 1, 2, 3. Which impose upon Sheriff or two Justices of the Objectionable as imposing duties Peace the duty of calling public meeting for the purposes of on officers with whom the Proascertaining whether inhabitants of district desire a market to vincial Legislature and Exebe established, and for election of Market Commissioners. cutive have no administrative relations. Sec. 14. Which empowers Commissioners to provide in by-laws Ultra vires; for the Constitufor imposition of penalties for their breach. tion Act forbids altering of criminal law by Provincial Councils; and although tho " Provincial Councils Powers Act, 1856," enables Provincial Legislatures to create offences and impose penalties up to £100, it does not enable such Legislatures to give a similar power to other bodies. Sec. 23. Empowering Justices to determine disputes as to stallage Ultra vires. (Bagge v. Sinclair.) rents and tolls. Sec. 38. Empowers Justices to determine whether food seized is Ditto. unfit for man. Sec. 43. Which provides what kind of service of summonses or Ditto. other legal proceedings shall be good service. Sec. 44. Provides by and against whom legal proceedings shall Ditto. So far as this Act relates be carried on in any Courts. to powers, it is amply provided for by "The Municipal Act, 1867." Moreover, the regulation of a market in a town or district should not be vested in a separate body, but in such body as has power over other matters affecting Towns or Road Districts. * Repealed by "Fencing Act, 1867," which has been validated by " Provincial Acts Validation Act, 1867." t This was never an Ordinance of the Provincial Council, it never having been assented to; but having been passed by the Provincial Council, action was suspended in order that it might be validated by Act of Oeneral Assembly.

OE PROVINCIAL ORDINANCES

7

A—No. 7.

Title of Act or Ordinance, and subject-matter of Sections. Remarks. WELUSQ'SOS—continued. An Act to repeal the Wellington Board Act, and make other provisions for the Management of the City of Wellington. No. 11, Sess. XIII.* An Act to provide for the Management of the Streets and Drainage in Towns and Populous Places, and the Preservation of the Health of the Inhabitants thereof. No. 17, Sess. 11. Sees. 5, 6, 7, 8, 9, 10, 11, 12, 15. Imposing duties on Sheriff of Objectionable,as imposing duties convening meetings and conducting elections. on officer of General Government not having any relation to Provincial Governments. ■ Sec. 23. Board to sue and be sued in name of Clerk. No action Ultra vires, and matter suffito abate by death of Commissioner (five being a Board). ciently provided for by Acts of General Assembly. Sec. 2S. Power to Board to make by-laws, and provide therein Ultra vires, for though the Confer imposition of penalties. stitution Act forbids the altering of the criminal law by Provincial Councils, and although "The Provincial Council Powers Act, 1856," enables Provincial Legislatures to create offences and impose penalties up to £100, it does not enable such Legislature to give a similar power to other bodies. Sec. 29. Power to Justice of the Peace before whom penalty is Questionable. recovered to remit penalty. Sees. 95, 96, 97, 98. Power to sell land for rates, and imposing Ultra vires, and subject suffiduties on Justices to set out land to be sold, and to Sheriff to ciently provided for by sign conveyance. " Sale for Non-payment of Rates Act, 1802." Sec. 84. Power given to Resident Magistrate to order the for- ; Ultra vires. feiture of unwholesome food. Sec. 94. Power to Collector to recover rates. Ditto. (Bagge v. Sinclair.) Sec. 111. In default of owner doing work to his premises, Board Unintelligible. It does not may repair same, and expenses of repairing may be recovered provide in what Court and in by summary proceedings. what way. So far as applicable to any Court other than Resident Magistrate's up to £20, is ultra vires. The Drainage Act, 1863. No. 7, Sess. X. Subsec. 2 of Sec. 4. Affects to give powers to Supreme Court Ultra vires, as affecting juristo direct how compensation money should be applied. diction of Supreme Court. Sec. 6. Two Justices of the Peace, assembled on application of Ultra vires. either party, may state compensation and decide disputes. Sec. 9. Provides for settlement of disputes by arbitration, and Ditto. making award a rule of Supreme Court. Sec. 15. Empowers Justices of the Peace to decide questions as Ditto, to what lauds are benefited by drainage. The Public Boards Act, 1856. No. 3, Sess. 111. (Misprinted No. 2, Sess. III.) Sees. 7, 8, 9, 10, 11, 13. Impose on Commissioners and Justices Objectionable for reasons stated of the Peace duties of calling meetings of inhabitants, and as regards similar provisions holding elections of Boards. in other Acts. Sec. 18. Contracts to be made in name of Chairman; action not Ultra vires. Alters practice of to abate by death of member of Board. Court. An Act to amend and consolidate the Law relating to District Highways. No. 10, Sess. IX.f The District Highways Act, 1567. ' * Sec. 5. Speaks of Justices of a proclaimed district, and confers Ultra vires. (Bagger.Sinclair.) upon them the duties of calling meetings and holding elections. * Wellington having been created a Corporation under " The Municipal Corporation Act, 1867," this Act is repealed, t Repealed by " The Highways and Watercourses Diversion Act, 1858."

A.—No. 7.

8

MEMORANDUM ON THE VALIDITY

Title of Act or Ordinance, and subject-matter of Sections. Remarks. WELLIN GTO N— continued. The District Highways Act, 1867—continued. Sec. 10. Confers powers on Benches of Magistrates to order Ultra vires. (Bagge v. Sinclair.) Chairman of Road Board to repair roads. Sec. 11. Provides that Chairman may sue and be sued on behalf Ditto, and unnecessary. The of Board. Legislature have provided sufficiently on subject. Sec. 20. Provides that rates may be recovered by summary pro- Ultra vires. (Bagge v. Sinclair.) ceedings at suit of Collector, without limit as to amount. Sees. 23, 24, 25, 39. Provide for settlement of disputes, and Ditto, awarding compensation by arbitrators, and making award a rule of Supreme Court, and for taxing costs. Sees. 22-27. Provide for taking land compulsorily in a manner Ultra vires, as repugnant to not in accordance with provisions of " The Compulsory Land Act of General Assembly. Taking Act, 1866." Sec. 30. Empowers Superintendent to authorize the occupation, Ultra vires, the freehold being for pastoral purposes, of certain highways vested in the Crown. vested in the Crown. Sec. 39. Empowers Board to grant conveyance of disused This is ultra vires, the land highways. being Crown land. It is, moreover, repugnant to " The Highways and Watercourses Act, 1858." An Act to vest in a Board of Wardens, for the Management of Local This Act, so far as it incorpoPublic Works the Management of the Streets, Sewerage, and rates ultra vires provisions Preservation of the Health of the Inhabitants of the Town of of Sess. 11., No. 17, is ultra Wanganui. vires. An Act to amend and consolidate the Laws relating to Scab, Catarrh, and Sheep Inspectors. Sess. XL, No. 13. Sect. 13. Gives power to a Justice of the Peace to order search Ultra vires. (Bagge v. Sinclair.) of vessels for infected sheep. Sect. 33. Gives power to recover assessment on sheep before Ditto. Resident Magistrate or any Justice of the Peace, although it may exceed £20. Sees. 1, 2, 6, of An Act to authorize the Superintendent to cause a Wharf to be erected in the Harbour of Port Nicholson. No. 1, Sess. VIII. Sec. 1. Superintendent authorized to construct wharf at such This would give a power to place in the harbour as may appear best adapted for the erect it below high waterpurpose, mark, even on land not granted to Superintendent, but remaining in the Crown. This a Provincial Legislature cannot do, the Constitution Act forbidding them by legislation to affect Crown lands. Sec. 4- Power to Superintendent to make by-laws, and to provide Ultra vires for reasons already for the imposition of penalties. stated with regard to bylaws. NELSON. An Act to provide for altering Roads in the Province of Nelson, 1855. No. 4., Sess. 11. Sees. 1, 2, 3, 4, and generally the whole Act. Powers to Justices Ultra vires. This Act is also of the Peace to hear and determine whether road is necessary repugnant to " Highways and or may be diverted or not; and authorizing the taking of roads Watercourses Diversion Act, through private lands ; and for determining amount of com- 1858," and " The Provincial pensation by award ; and authorizing Supreme Court to make Compulsory Land Taking Act, orders in certain cases for allotting compensation money. 1866." An Act to provide for the Making and Maintaining of Roads and other Public Works in the Province of Nelson. No. 4, Sess. 111. (1856), except clauses 4, 5, 6, 7, 9, 26, 27, 32, and 33.* * Amended by " Country Roads Amendment Act, 1868." No. 12, Sess. V.

OF PROVINCIAL ORDINANCES.

9

A.—No. 7.

Title of Act or Ordinance, and subject-matter of Sections. Remarks. NELSO N— continued. An Act to provide for Making and Maintaining Roads, Sfc. —contd. Sec. 10. Disputes relating to election of members or making This seems to be ultra vires rate to be determined by Superintendent and Executive within the principle in Bagge Council (on request of five electors), whose decision shall be v. Sinclair, final. Sec. 15. Authorizes Justice of the Peace to make order on Ditto, a party to reimburse another party charges and expenses occasioned by his obstruction. Sec. 18. Empowering two Justices of the Peace to hear and Ultra vires. Ditto, determine disputes as to the taking of materials from private lands for mending roads. Sees. 21, 22, 23, 24. Providing for settlement of certain disputes Ditto. by arbitration and for making award a rule of Court. Sec. 25. Provides for recovering before Justice of the Peace Ditto, as constituting a new dues for use of public works. Court. Sec. 29. Persons may appeal against assessment to Bench of Ultra vires. three Magistrates called Court of Appeal. Sec. 31. Power to recover rate before one Justice of the Peace. Ultra vires, creating new tribunal for recovering a debt of any amount. Sec. 41. Proceedings against Clerk in name of Board not to abate Ultra vires, as altering practice by death of Clerk or Member. and procedure of Courts of Justice. Sec. 44. Providing that no Judge. Resident Magistrate, or Justice Ultra vires, as giving a jurisof the Peace, shall be disqualified as ratepayer. diction where the Judge or other person would not have it. The Country Roads Amendment Act, 1868. No. 12, Sess. V. No provisions in this Act requiring validation. The Country Roads Amendment Act, 1863. No. 2, Sess. X. Sec. 2. Persons to be summoned before Justices of the Peace to Invalid. show cause why hedges and trees should not be trimmed, and empowering Justice of the Peace to order them to be trimmed. Sees. 4, 5, 6. Empower Road Board to make by-laws, and pro- Ultra vires. Probably this would viding penalties for breach thereof. be so even though no power to create penalties were given by Act, for though " The Provincial Councils Powers Act, 1856," gives the power to Provincial Legislatures to create penalties, it does not empower Provincial Legislatures to authorize another body to do so. An Act to provide for the Improvement of the Town of Nelson, 1856. No. 3, Sess. 111., except clauses 3, 4, 5, 6, 7, 9, 11, 29, 31, 32, 33. 34, 35, 38, 40.* Sec. 10. Disputes relating to making rate to be referred to Super- Questionable. intendent and Executive Council. Sees. 13, 14. Empowering Justices of the Peace to order making Ultra vires. of drains. Sec. 16. Empowering a Justice of the Peace to order the reim- Ultra vires. bursement of expenses of making watercourses or drains. Sees. 18, 19, 20, 21. Disputed compensation to be settled by ! Ditto, as adding to jurisdiction arbitration; costs to be awarded, and award made a rule of of Court in a manner not Supreme Court. warranted by law. Sec. 25. Power given to two Justices to order building or wall to Ultra vires. be taken down, and to order payment of expenses. Sec. 28. Provides for recovery of dues before a Justice of the j Ditto. Peace in a summary way. t Sees. 35, 36. Property may be sold if rates in arrear. Repealed by " Sale for Nonpayment of Rates Act, 1862." Sec. 37. Providing for settlement of a special rate for improve- Questionable and objectionable. ments by arbitration. Sec. 45. Action may not abate by reason of death of member of i Ultra vires, as altering practice Board, or Clerk; and Board may sue in name of Clerk. of Court, and provided for by " The Unincorporated Boards Suits Act, 1870." * Amended by " The Nelson Improvement Amendment Act, 1858," and " The Nelson Improvement Act, 1862." 3

A.—No. 7.

MEMORANDUM ON THE VALIDITY

10

Title of Act or Ordinance, and subject-matter of Sections. Remarks. NELSON— continued. An Act to provide for Improvement of the Town, fyc. —continued. Sec. 47. Provides that no Judge shall be disqualified by reason Ultra vires, as giving a jurisof interest. diction, where otherwise he would not have it. An Act to amend " The Nelson Improvement Act, 1856," and to repeal " The Nelson Improvement Amendment Act, 1857,1858." No. 11, Sess. V. Sec. 8. Persons aggrieved by assessment may appeal to Bench of Ultra vires, as establishing a two Magistrates —called Court of Appeal. Court. (Bagge v. Sinclair.) Sec. 13. If rate be not paid, property may be sold. Repugnant to " Tho Sale for Non-payment of Rates Act, 1862." Sees. 15, 16, 17. Authorize Board to make by-laws, providing Ultra vires, for reasons above thereby for imposition of penalties. given in another Act. Sec. 23. Empowers Resident Magistrate to order persons laying Ultra vires. out streets and public roads to make them of certain width. An Act to amend " The Nelson Improvement Act, 1856, 1862." No. 8, Sess. IX. Sec. 2. Penalty to be recovered before one Justice of the Peace. Ditto. (Bagge v. Sinclair.) MARLBOROUGH. The Picton Improvement Act, 1861. No. 5, Sess. V. Sec. 9. Power to Superintendent to decide about elections and Questionable. vacancies in office. Sec. 13. Persons aggrieved by assessment may appeal to Bench of not less than two Justices of the Peace, called Court of Ultra vires. Appeal. Sec. 16. Power to recover rate before one Justice of the Peace Ditto. in a summary way Sees. 17, 18, repealed. Property may be sold for non-payment of Repealed by " The Picton Imrates. Superintendent to sign conveyance ; Magistrate to set provement Act, 1861 ;" and out land ; Justices to determine what portion of land to be ultra vires so far as tribunals sold. are concerned; and inconsistent with, and repugnant to, provisions of the General Assembly on the same subject. Sees. 22, 23. Power to Justices to hear and determine objections Ultra vires. (Bagge v. Sinclair.) to making drains, &c. Sec. 26. Providing for recovery of expenses of putting down Ditto. drains and other structures, built contrary to Act, before a Justice of the Peace. Sees. 27, 28, 29, 30. Provision for settlement of disputes by arbi- Ditto. tration, and for making award a rule of Court, and for payment of costs Section 33. Imposes a penalty for every week a certain act is It does not appear clear ; but omitted to be done. under this provision a penalty over £100 may be imposed. Sec. 34. Power to two Justices of the Peace to order dangerous Ultra vires. building to be taken down, and to recover expenses before Justice of the Peace. Sec. 37. Power to recover dues in a summary way before Justices Ultra vires. of the Peace. Sec. 38. Power to settle amount of special assessment by arbi- Ditto. tration. Sec. 44. Board to sue and be sued in name of Clerk. Actions Ditto, and sufficiently provided not to abate by death of member of Board, &c. for by Acts of General Assembly. Sec. 46. Provides that no Judge should be disqualified though Ultra vires. interested. Sees. 47, 48, 49. Authorize making by-laws, and providing Ditto. thereby for imposition of penalties. Sec. 49. Penalty for breach of by-laws to be recovered before Ditto. Justices of the Peace in a summary way.

OF PROVINCIAL ORDINANCES.

A.—No. 7

11

Title of Act or Ordinance, and subject matter of Sections. Remarks. MARLBOROUGH— continued. The Picton Improvement Act, 1861—continued. Sec. 54. Authorizes Justices of the Peace to order private Ultra vires, for reasons already persons laying out roads to make them of a certain width. given in similar cases. Sec. 55. Appeals to Justices against acts of Board in exercise Ultra vires. of powers relating to laying out of buildings uniformly. An Act to amend the Picton Improvement Act. No. 1, Sess. VII., Nothing objectionable in this 1863. Act. The Blenheim Improvement Act, 1864. Sec. 12. Provides for settlement of disputes relating to elections Questionable. and vacancies in office by Superintendent and Executive. Sec. 16. Persons aggrieved by assessment may appeal to Bench Ultra vires. of not less than two Justices of the Peace, called Court of Appeal. Sees. 21, 25. Power to Justices of the Peace to orderwh ether Ditto. drains or sewers shall be made or not. Sees. 27, 28. Power to recover expenses caused by obstruction Ditto. of work, or making unauthorized excavations in a similar way. Sees. 29, 30, 31, 32. Power to settle disputes and compensation Ditto. by arbitration, and to make award a rule of Court. Sec. 35. Powers to Bench of not less than two Justices of the Ditto. Peace to require roads to be made of necessary width. Sec. 36. Two Justices of the Peace may order dangerous build- Ditto. ing to be pulled down, and for recovering expenses in a summary' way before two Justices of the Peace. Sec. 39. Power to recover market dues before a Justice of the Ditto. Peace in a summary way. Sec. 46. Board may sue and be sued in name of any one member Ditto. of Board, or Clerk, and action not to abate by death of Clerk or member of Board. Sees. 48, 49, 50. Power to Board to make by-laws and impose Ultra vires, and unnecessary, penalties. and matter sufficiently provided for by Act of General Assembly. Sec. 56. Bench of not less than two Justices of the Peace to Ultra vires. cause surveyors to make correct plans of public roads or streets. The Drainage Act, 1867. This Bill was never assented to by the Governor, but had tho force of an Act of the General Assembly given to it by " The Provincial Acts Validation Act, 1867 ; " but the validation of it was expressly discontinued by " The Provincial Acts Validation Act Continuance Act, 1868." The Roads Act, 1867. Validated by " Provincial Acts Validation Act, 1867," but devalidated by " Provincial Acts Validation Act Continuance Act, 1870." The Picton and Havelock Improvement Act, 1869. Sec. 9. Power to Justice to order cattle, owners of which are un- Ultra vires. known, to be destroyed. The Picton Improvement Act Amendment Act, 1867. Nothing objectionable in this Act. The Province of Marlboroughßoads Act, 1870. Sec. 8. Provides that disputes with regard to elections of Questionable and objectionable, members of Road Boards to vacancies should be decided by as the tribunal created seems Superintendent and Executive on petition in writing. to be a Court of Judicature within the judgment in Bagge v. Sinclair.

A.—No. 7.

12

MEMORANDUM ON THE VALIDITY

Title of Act or Ordinance, and subject-matter of Section. Remarks. MARLBOROUGH— continued. The Province of Marlborough Roads Act, 1870—continued. Sees. 23, 24, 25. Power to make by-laws and provide for penalties Ultra vires. The Legislature for breaches. has given power to the Provincial Legislature to create offences, but has not empowered the Provincial Legislature to authorize another body to do so. Sec. 32. Gives power to Resident Magistrate's Court and Court Ultra vires. (Bagge v. Siuelair.) of Petty Sessions to appeal against rates. Sec. 48. Power to take materials from land, and to Justices to Ditto, as adding to jurisdiction settle disputes relating thereto, and to Justices to give orders of Magistrates, for the taking of such materials. Sees. 51, 52, 53, 54. Disputes relating to compensation to be Ditto, as creating a new tribunal, settled by arbitration : Power to appoint arbitrators and make and adding to the jurisdiction, award a rule of Court. and affecting the jurisdiction and procedure of Supreme Court. Sec. 56. Which authorizes Judges, Resident Magistrates, &c, to Ultra vires, as giving a jurisact though interested. diction where no jurisdiction exists. CANTERBURY. The Roads Ordinance, 1864. No. 8, Sess. XXII. Repealed by " The Roads Act, 1869." The Roads Ordinance Amendment Ordinance, 1866. No. 20, Sess. Ditto. XXIV. The Roads Ordinance Amendment Ordinance, 1867. No. 12, Sess. Ditto. XXVI. The Roads Ordinance Amendment Ordinance, 1867. Ditto. The Roads Act, 1869. Sees. 19-27. Power to revise ratepayers' roll, and to hear and Ultra vires. (Bagge v. Sinclair.) determine questions as to assessment. Sees. 20, 21, 22, &c. Establishing a Court for revision of Ditto. electoral rolls. Sees. 34. Provides that rate should be property of Board, but Ditto, recovered at suit of Collector. The Christchurch City Council Ordinance, 1862. Christchurch is now created a Corporation, and this Act is now repealed by " The Municipal Corporations Act, 1867." The Lyttelton Municipal Council Ordinance, 1863. Lyttelton is now created a Corporation, and this Act is now repealed by " The Municipal Corporations Act, 1867." The Hokitika Municipal Council Ordinance, 1867. Hokitika is now created a, Corporation, and this Act is now repealed by " The Municipal Corporations Act, 1867." The Municipal Council Ordinance. No. 2, Sess. XIV. Under this Ordinance Kaiapoi and Timaru were originally incorporated, but they have since been constituted Municipalities under " The Municipal Corporations Act, 1367," of the General Assembly, and therefore, within those towns, the above Ordinance is repealed. It should now be repealed throughout the whole Province; for though it remains in force, there is no reason for, or apparent intention of, creating Corporations under it.

A.—No. 7.

Title of Act or Ordinance,, and subject-matter of Sections. Remarks. CANTERBURY— continued. The Sheep Rating Ordinance, 1866. » Repealed by " The Roads Act, 1869." The Sheep Rating Ordinance 1866 Amendment Ordinance, 1867. This contains no ultra vires provisions, and merely contain* an amendment of mere immaterial omissions in "The Sheep Rating Ordinance, 1866," and ought to have been repealed by " The Roads Act, 1869." The Fencing Ordinance, 1869." Repealed by " The Fencing Ordinance, 1869." The Fencing Ordinance 1866 Amendment Ordinance, 1867. Ditto. The Fencing Ordinance, 1869. Sec. 9. Empowering Resident Magistrate's Court or Court of Ultra vires. (Bagge v. Sinclair.) Petty Sessions to hear evidence and decide disputes relating to fencing. The Roads Ordinance Amendment Ordinance, 1866. Repealed by " The Roads Ordinance, 1869." The Gibson Quay Ordinance, 1866.* Nothing ultra vires in this Ordinance. The Gibson Quay Ordinance Amendment Ordinance, 1867. Ditto. The Beswick Wharf Ordinance, 1864. Nothing objectionable in this Ordinance. The Fire Ordinance, 1864. Nothing objectionable in this Act ; though, if it is intended by sections 6 and 14 that damages for the injury to property, as well as penalty, may be recovered before a Justice of the Peace, then the provision, so far as it extends to damages, is ultra vires. The object of the Bill is to authorize the enrolment of fire brigades, and to authorize the pulling down of houses. The subject has been adequately dealt with by tha General Assembly in " The Municipal Corporations Act, 1867," and "The Fire Inspectors Act, 1870." The Sheep Ordinance, 1864. Sec. 18. Which provides that, on imposition of a penalty for not It is questionable whether these erecting dipping apparatus, Justice of the Peace may suspend clauses are not inconsistent infliction of penalty for three months. with Acts of General Assembly which regulate proceedings for imposition of penalties before Justices of the Peace. Sec. 20. Justices of the Peace may suspend any penalty imposed Ditto. for scabby sheep. See. 21. Six months to elapse between convictions for scabby Ultra vires. sheep. Sec. 22. Justices may order infected sheep to be herded and Ditto, as adding to jurisdiction yarded. of Justices. Sec. 23. Inspector may order infected sheep to be herded and U7£raOTVw,constitutingaCourt. yarded. Appeal lies to Resident Magistrate icith two Justices of the Peace. Sec. 45. Any Justice of the Peace may order owner of sheep to Ultra vires. muster same on application of owner of sheep. * This wharf is erected on a piece of land granted to the Superintendent under the Public Reserves Act. The Act authorizes the charging and letting of tolls. 4

13

OF PROVINCIAL ORDINANCES

A.—No. 7,

14

MEMORANDUM ON THE VALIDITY

Title of Act or Ordinance, and subject-matter of Sections. Remarks. CANTERBURY— continued. The Sheep Ordinance, 1864—continued. Sec. 48. Provides that persons wilfully communicating disease Provision does not express how to sheep shall on conviction before two or more Justices of tho conviction is to be obthe Peace, be imprisoned for not more than six months. tained, summarily or otherwise. " The Provincial Councils Powers Act, 1856," pro- . vides that the Provincial Legislature must express whether the conviction is to be by summary procedure or otherwise. Sec. 51. Provides that expenses of prosecutor are to be paid All penalties are General reout of penalties. • venue, and are not subject to Provincial appropriation ; and by " The Diseased Sheep Fines Appropriation Act, 1867," all fines and penalties are made Provincial revenue and are to be paid to the Provincial Account. The Sheep Ordinance 1864 Amendment Ordinance, 1869. Sec. 2. Provides for suspension of penalty after imposition of This is open to the objection same. pointed out in the Sheep Ordinance of 1864. The Education Ordinance, 1864. Sec. 7. Provides for settlement of disputes by Superintendent, Questionable. whose decision shall be final. Sec. 31. A Justice of the Peace has power to summon a person Ultra vires. to show cause why rate should not be levied by distress. The Hospital and Charitable Aid Ordinance, 1864. (Misprinted in Schedule to Act of 1867, as " The Hospital and Charitable Act Ordinance, 1864.") Sec. 4. AVhich provides that all suits by or against any Institute Ultra vires, as altering practice established under this Act shall be in the name of the of Court. (Bagge v. Sinclair.) Superintendent. Sec. 14. Objections to payment of rates to be heard by two Ultra vires. (Bagge v. Sinclair.) Justices of the Peace, or more. Sec. 18. Provides that rates shall be sued for in name of Collector. Ultra vires, as altering practice of Court. (Bagge v. Sinclair.) The Hackney Carriage Ordinance, 1864. (Misprinted as " Tho Railway Carriage Ordinance, 1864.") Provides for City Council making regulations and by-laws, and Beyond powers of Provincial attaching penalties for breach. legislation, but the Act may be considered obsolete, notwithstanding validation —(1) because the City Council to which that Act refers does not exist, the town having been incorporated under the Municipal Corporations Act; and (2) the present Municipality has powers of a similar nature under the Municipal Corporations Act: therefore this Act may be repealed. The Waimakariri Bridge Ordinance, 1863. Nothing ultra vires in this Ordinance. The Heathcote Bridge Ordinance, 1862. Ditto. The Dog Nuisance Ordinance. No. 3, Sess. XVII. Ditto. The Dog Nuisance Ordinance Amendment Ordinance, 1862. Ditto.

OF PROVINCIAL ORDINANCES.

15

A—No. 7.

Title of Act or Ordinance, and subject-matter of Sections. Remarks. CANTERBURY— continued. The Trespass of Cattle Ordinance, 1869. Sec. 22. Empowers Justices of the Peace to give order for sale Ultra vires. Either creating a of impounded cattle on being satisfied by evidence on oath that new tribunal, or adding to provisions of Ordinance have been complied with. jurisdiction of Justices of the Peace in a manner not authorized by law. Sec. 24. Authorizes Justices to order sale in certain cases. Di to, ditto. Sec. 33. Provides that proceedings on account of trespass must This seems to affect the practice be considered within thirty days after occurrence of trespass. and procedure of all Courts of Justice, and is therefore ultra vires. OTAGO. The Otago Roads Ordinance, 1865. No. 190, Sess. XX. Sec. 36. General Board to decide on objection to rates, or may This seems to create a tribunal appoint a Commissioner. for deciding on objections, and seems to come within definition of a Court of Judicature, laid down in Bragge v. Sinclair. Sec. 39. Power conferred on Collector to sue for rates. Questionable. Sec. 40. Appeal may be made to Resident Magistrate's Court. Ultra vires. (Bagge v. Sinclair.) The Otago Roads Ordinance 1865 Extension and Amendment Ordinance. Nothing objectionable in this No. 210, Sess. XXI. Ordinance. The Otago Municipal Corporation Ordinance, 1865.* Sees. 40, 41. Constitute Council a Court for revision of List of This is ultra vires, as it constiVoters and hearing objections. tutes a tribudal, and appears to be within decision of Bagge v. Sinclair. An Ordinance to amend " The Otago Municipal Corporations Ordinance, 1865." Sec. 7. Power to Superintendent to endow Municipality by Invalid, as affecting waste lands reserves of waste lands. of the Crown. The Otago Municipal Corporations Ordinance Amendment Ordinance, Nothing invalid. 1866. The Port Chalmers Town Board Ordinance Repeal Ordinance, 1867. This Ordinance was passed for the purpose of transferring to a new Corporation, created in 1867, lands and property, rights of action, <fec, vested in the old Corporation for that town. The objects of the Ordinance have been served, and validation docs not require I<* be continued. The Oamaru Town Board Ordinance 1862 Repeal Ordinance, 1867. Ditto. The Fencing Ordinance, 1867. Sec. 6. If persons cannot agree as to the nature of fence, differ- Ultra vires. (Bagge v. Sinclair.) ence may be settled by Resident Magistrate or Justices of the Peace. * This Ordinance was permanently validated by sec. 42 of " The Otago Municipal Corporations Empowering Act, 1865," of the General Assembly. As it may be doubted whether the language used in this validation is sufficient for the purpose, it will be advisable either to validate this Bill by different language, or to repeal the Ordinance altogether, and bring the Dunedin Municipality under " The Municipal Corporations Act, 1867." That Corporation has already adopted a considerable part of the Act; and if " The Municipal Corporations Act, 1867," were amended by providing for the introduction of vote by ballot in corporations, it is probable that Dunedin would not object to the Act.

A.—No. ti

16

MEMORANDUM ON PROVINCIAL ORDINANCES.

Title of Act or Ordinance, and subject-matter of Sections. Remarks. SOUTHLAND. The Invercargill Town Board Ordinance, 1863. Sec. 46. Board to hear objections to assessments. This seems to be objectionable, as creating a tribunal for deciding objections. Sec. 48. Collector with warrant from Justices of the Peace may Ultra vires. enter upon land and distrain for rates in arrear. Sec. 53. Appeal lies to Resident Magistrate, or any two Justices Ditto. of the Peace, with regard to rates. Section 56, and following clauses. Empower Board to make by- Ditto. The Legislature, though laws on any subject, and providing for breach of by-laws by it has empowered the Propenalties, vincial Council to create offences, has not empowered the Provincial Council to authorize any other body to make by-laws. Sec. 74. Provides for mode of service of writs, and other legal Ultra vires, as affecting practice proceedings. and procedure of all Courts. Sec. 75. Provides that penalties recovered should be paid to Ultra vires. Penalties are GeneClerk of Board, and form part of its funds. ral revenue, and therefore Provincial Legislature cannot appropriate them. The Roads Ordinance, 1862. No. 19 of Series. Sec. 11. Empowers two Justices of the Peace to determine com- Ultra vires. plaints against officers of Road Boards for detaining books or other property. Sec. 31. Gives appeal with regard to rates to Resident Magis- Ditto. trate or Justices of the Peace. Sec. 34. Provides for levying rates in arrear by distress warrant. Ditto. The Tolls Ordinance, 1866. No. 65 of Series. Sec. 26. Empowers the Superintendent to make by-laws and Seems ultra vires. The Proattach penalties. vincial Legislature has power to create offences, but it cannot give that power to'any other body. The Roads Ordinance 1862 Amendment Ordinance, 1867. Nothing objectionable in this Ordinance.