8.—17.

26

Mb. FitzGerald. —By an oversight, an old computation of Dr. Pollen's length of service has been used instead of the accurate and recent one. Unless the few weeks short of the fourteen years required by the Act is disregarded, the Acts of 1858 and 1861 are not applicable to his case. 1 beg to direct attention to the Act of 1861, sections 2 and 3. Prom the first of these sections it would appear that an officer must serve fifteen years before he can retire without a medical certificate ; but the 3rd clause gives a pension to those who have served only fourteen years. It is difficult to understand the meaning of this, unless it be that the first part of clause 3 provides a new scale for officers retiring under the Act of 1858 upon a medical certificate. I beg also to draw attention to the opinion of the Hon. Mr. Whitaker that Dr. Pollen is only entitled to draw his pension from 1877, as when he ceased to be a Minister, and not from June, 1873, when he finally retired from the Civil Service. This opinion ia of very considerable importance on the final settlement of the case, and is at variance with the procedure in the case of the Hon. W. Gisborne, who has drawn his pension during all the time he was a Minister.—J. G. Anderson.—23rd February, 1880. Theek is certainly nothing whatever in the Acts which prevents pensions being drawn by a Minister. Pensions cannot be drawn where a permanent office is held of higher salary than the former one. (sections 4 and sof Act, 1858), but by section 9 this does not apply to Ministers. Sir W. Fitzherbert and Mr. Gisborne have both drawn pensions as Ministers ; and this having been the ruling for many years under successive Attorney-Generals ought not now to be disturbed. 1 also submit the question that the acceptance of political office necessarily, without resignation, vacates a permanent office, has been too hurriedly accepted. There is no positive law on the subject, and the maxim that the acceptance of higher office vacates lower, is limited to officers in the same profession, or of the same kind. Several permanent offices are held in England during political office: an officer of the army or navy holds his rank and pay during the time he holds the office of Minister at War, or Lord of or Secretary to the Admiralty. The Warden of the Cinque Ports holds his office though a Minister. I have no doubt many similar instances may be found. In this country the Officer Administering the Government did not vacate the Superintendency of Auckland, or the command of the troops, or of the 58th Regiment. The Chief Justice continues so whilst acting as Governor (but this is by Statute). The offices of Secretary of Crown Lands and Commissioner of Stamps have been held jointly with political offices— so that the rule is not by any means fixed. It is admitted that Sir J. Vogel specially promised Dr. Pollen that his acceptance of office should not operate to debar his pension ; and, looking to the interpretation the law had otherwise received, there seems no reason why he should not have done so. If, therefore, the Governor should see fit to grant Dr. Pollen a pension, on the calculation of his time of service reckoning during his Ministry, I should not feel it my duty to object to such a pension as illegal.—J. E. F'G.—23rd February, 1880. On this memorandum of Mr. FitzGerald's I have only shortly to observe, that it is not doubted that the acceptance of a political office does not necessarily vacate a permanent office unless the one is incompatible with the other : incompatibility is the test in all cases, whether the offices are political or permanent. In Dr. Pollen's case the offices of Premier and Colonial Secretary, &c, were, in my opinion, incompatible with the offices of Government Agent, &c. In reference to Mr. Anderson's memorandum, it appears to mo that in the years 1861-62 and 1868-69 Dr. Pollen held the honorary office of Executive Councillor, only without the pay or power of a Minister (see his memorandum, Ist March, 1880), and in my opinion such an office was not incompatible with the offices of which ho performed the duties, and for which he received salary. I think, therefore, that no deduction should be made from his length of service on that account. —Feed. Whitakee. —sth March, 1880.

No. 60. Memorandum for the Hon. the Attorney-General—From November, 1856, to July, 1873,1 count sixteen and a half years of service, less a period of six months during which, although I was still a Receiver of Land Revenue—not having resigned or been discharged —I had no active duty. I note that it is proposed to deduct from this period the term during which I was in office with Mr. Stafford in 18(58-69, more than two and a half years in all. During the first term I was a member of the Executive Council of the colony without portfolio, and without pay. During the second term I was a member of the Executive Council without portfolio, but with the title of Resident Minister at Auckland. I had no increase of pay then ; the honorarium given to me as Deputy-Superintendent of the province, which office I then resigned, made my salary equal to that received by me as Minister —namely, £1,000. Excepting during the Parliamentary session of 1868 I was always in Auckland, actively and personally engaged in the discharge of the duties of the several offices in the Civil Service then held by me. I believe that lam entitled to reckon the whole term of my service from November, 1856, to October, 1876, when, in view of the operation of the Disqualification Act just then passed, I resigned my Civil Service appointments. I was and am willing, in order to avoid objections which had, I think, very much of a political party character, to take advantage of the provisions of the 33rd clause of " The Civil Service Act," 1866, and thus to allow the pay received by mo during the years 1871-72 and 1872-73 to be taken as the basis of calculation for my retiring allowance. I did not and do not make any claim for payment of pension before the time when the resignation of my Civil Service offices was accepted by His Excellency the Governor. "But from that period, 30th October, 1876,1 hold that lam entitled to receive that payment, notwithstanding the fact that 1 held office and received pay as a Minister of the Crown. I know nothing in the law regulating the Civil Service of the colony adverse to that claim; and it has the sanction of custom as exemplified in the cases of Sir William Fitzherbert and the Hon. Mr. Gisborne.—Dahiel Pohek.-Auckland, Ist March, 1880. Haye the pension calculated from 13th October, 1877, at the rate of salary paid to Dr. Pollen during the two years prior to the time, 2nd June, 1873, that he reached the age of sixty years. —Thomas Dick. —17th March, 1880.