A—No. 3.

4

DISALLOWANCE OP PROVINCIAL BILLS.

His Excellency will therefore not be advised to exercise his power of disallowing any of the Act3 abovementioned. " The Highways Act, 1871," is open to the following objections: — The 38th and 39th sections provide for an appeal to Resident Magistrates' Courts, and Courts of Petty Sessions, against the decisions of the Board in matters relating to rating, and authorizes the Resident Magistrates and Petty Sessions to give costs. The constitution of such a court of appeal has been declared by the Court of Appeal, in the case of Bagge v. Sinclair, to be ultra vires, and to invalidate the Act, or, at any rate, to vitiate the provisions for the imposition and recovery of the rate provided by the Act. The provision of the 41st section, which affects to make the assessment list conclusive as to its validity and evidence of liability, is, the Government are advised, ultra vires, as it, in effect, assumei to alter the law of evidence in any Court, whether Supreme, District, or otherwise, in which rates are sought to be recovered. The provision of the 42nd section, which assumes to enable the collector to sue, was considered ultra vires by some of the members of the Court of Appeal in the case of Bagge v. Sinclair. The 55th section is considered invalid, as it imposes a penalty upon undefined oft'ences. Provincial Legislatures may, by Act, enact, that any deed or omission contrary to such Act, shall be an offence punishable by fine, &c. In this Act the Provincial Legislature does not itself define the offences, but, as it were, delegates the power of doing so to another body ; and notwithstanding that it may possibly be argued, that, on the Road Board making a by-law forbidding any act to be done, that bylaw becomes incorporated into the Act, the Government are advised that the provision is invalid. Section 58 provides, that a Magistrate may exercise jurisdiction though interested as a ratepayer. But for this provision, such a Magistrate would not have jurisdiction. This provision, therefore, alters the jurisdiction of Justices, and is, as the Government are advised, invalid. Possibly the provision might have been supported, if it had been restricted in its operation to magistrates in the exercise of their jurisdiction up to £20, but it is not so restricted. I should feel obliged if your Honor would state, in reference to the above, whether you are advised that the provisions referred to are not open to the objections made to them, and whether you desire to avail yourself of" The Provincial Councils Legislation Appeal Act, 1869," otherwise it will he the duty of the Government to advise His Excellency the Governor to disallow " The Highways Act, 1871." " The Licensing Act, 1871," is open to objection in some respects. The Government are advised that the 52nd section is ultra vires, for the reason that the Provincial Legislature cannot make provision for Justices to adjudicate in matters of forfeiture, or otherwise alter their jurisdiction, except by creating a new offence and imposing a penalty. The 57th section gives a general right of appeal, and is, therefore, ultra vires. If it had not gone beyond the provisions of " The Appeals from Justices Act, 1867," it might have passed without comment, as being identical with the Act of the General Assembly, and simply a statement of the law as it exists ; but the provision is likely to lead persons into error, and should be repealed. I desire to point out what seems to be a misprint in this section. " The Justices of the Peace Act, 1866," eeems to have been mentioned by mistake for " The Appeals from Justices Act, 1867." As these objections do not affect the principle of the Act under notice, the Government will abstain from advising His Excellency to disallow it, and leave it to its operation, upon receiving from your Honor an undertaking to introduce into the Provincial Council at its next Session a Bill to amend the provisions of the Act which I have pointed out as being open to objection. " The Grahamstown Fire Rates Act, 1871," appears to Government open to the following objection: — The Government are advised that this Act ought to have expressed that it does not give power to interfere with any right of individuals, or of the Crown. The object, no doubt, is not to give the power of constructing waterworks compulsorily, but only such as the trustees acquire, by agreement or consent, the right to construct; and the Act should be amended so as to make this clear. For if this Act is intended to give compulsory powers of taking land, it is invalid, as not having been passed in accordance with "The Provincial Compulsory Land Taking Act, 1806 ;" and if water rights are intended to be interfered with, such an Act ought to be passed only after notice to the individuals whose rights are intended to be affected. Moreover, such an Act should be specific, and should define the lands or water rights intended to be affected. The Government are advised that the 13th section of "The Registration of Brands Act, 1871," which enables Justices to hear complaints against the Eegistrar of Brands, and to adjudicate equitably, &c, is ultra vires. What ought to have been done was, to impose a penalty on the Eegistrar, and then the Justices could hear the complaint. This Act will, notwithstanding, be left to its operation, if your Honor will introduce an amending Bill next Session. "The Education Eeserves Management Act, 1871," professes to give a general power to the Superintendent to sell reserves, and thereby deprives the Governor of the power of judging whether, in any particular case, a reserve shall be sold. It was doubtless the intention of the General Assembly, in passing the provision contained in " The Public Eeserves Act, 1854," that Provincial Acts empowering the sale, &c, shall not come into operation until the time has elapsed within which the Governor may disallow them, to give the Governor the opportunity of preventing the sale of any particular reserve. And although the Act of 1854 is not very explicit on this point, it is so obviously necessary, on grounds of public policy, that the power should be retained in the hands of the Governor, that the Government will feel it their duty to advise His Excellency to disallow this Act. With reference to " The Kaipara Railway Act, 1871," I have the following observation to make:— It has always been considered necessary, when passing an Act for the construction of a railway, to make provision for the mode of construction, more especially with reference to public safety and