6

A.—3b

A.-4,1898, page 38.

The question of the legality or otherwise of the Proclamation, under which the revenues of 1897-98 were seized and administered by the late Resident, is not one that this Court will consider, for the reason that it is not necessary to do so ; we will, on the contrary, assume for the purposes of this case, that the Proclamation was legal, and, therefore, the Parliament having passed Vote 6, it was properly payable to some one. The real question is, therefore, to whom was this money payable ? The late Resident unhesitatingly decided in favour of M. Daniela, who was evidently regarded by him in the light of his own servant, and not as the servant of the Federal Government. Strange to say this also was the view taken by M. Daniela of his position, for his letter of resignation evidences this point very strongly, and can only be characterized as a gross piece of impertinence to his own Arikis and the Federal Government. I venture to say that had such a resignation been addressed to any other Legislature in the world, it would have been followed by the immediate dismissal of the writer. But even this very long-suffering body of men, who at that time composed the Federal Parliament, would seem for once to have asserted themselves, since they not only accepted the resignation of M. Daniela, but also appointed a Clerk of their own, in the person of Mr. F. Goodwin, who not only still holds the position, but has also shown that the choice made by the Parliament was a wise one. It is this appointment that has caused the present action, inasmuch as the Parliament, by appointing Mr. Goodwin, rendered themselves liable for his salary ; but they evidently did not anticipate that they would also be required to pay a second salary for the same work, and to a man who did not do that work. It is true that the late Resident refused to accept the resignation of M. Daniela, and it is also true that the popular idea is that the late Resident had the power to veto every Act of the Cook Islands Parliament. I think he even had this impression himself. Now it will be the duty of this Court to presently consider what were the powers of the late Resident, as exhibited by his official instructions ; at present it will be sufficient to say that, wherever it could be shown that any person was unfit, by reason of any defect in his moral character, or from want of education, to fill an appointment under the Federal Government, it became the duty of the Resident to veto that appointment, in the interests of the public, whom it is presumed he had been appointed to protect. As regards the veto on Mr. Goodwin's appointment, the foregoing remarks do not apply, for it is well known that he is an exceedingly reliable and able officer, whose character does not appear at any time to have been assailed. The question then is, had the Resident the authority to force the Federal Parliament to retain the services of M. Daniela, after they had accepted his resignation, and after he had been guilty of gross insubordination towards the Parliament ? Is there anything in the official instructions given by Lord Onslow that would warrant the late Resident in supposing that he had such power, or that he was justified in using it ? On this point, we have the letter of instructions issued to Mr. F. J. Moss, and also the Constitution Act to guide the deliberations of the Court. In the Proclamation issued by Lord Onslow, dated the 4th day of April, 1891, in which the British protectorate over the Cook Group is declared, the following passage occurs : " The British Resident has received from me full and definite instructions as to the action he will take." Now, the instructions referred to are evidently those contained in Parliamentary Paper A.-l of 1891, wherein Mr. Moss has been recommended to be careful as far as possible to avoid interfering with the Natives in their legislation, but generally to lead and advise them in a conciliatory manner. Such were the instructions given to the late Resident, and nothing can be gathered from these instructions that would justify the belief that the British Resident was authorised to interfere unduly in the work of the Government; he was rather to act as the friend and teacher of the Natives, and the " Constitution Act" was framed in the same spirit. By this last Act the Parliament are held responsible for the peace, order, and good government of the Cook Islands, and the legislation and government of the Islands is placed absolutely in their hands. Lastly, all appointments to the public service are made subject to the approval of Parliament. The only distinct power given to the Resident is under section 13, which provides that he may veto any act of administration with which he shall see reason to disagree. Under this section the Resident may have had the power to refuse his assent to Mr. Goodwin's appointment, but it would be stretching that power unduly to say that this section authorised him to dictate to the Parliament and say, " You shall not accept the resignation of an impertinent servant, and you must accept his clerk as a substitute for himself whether you like it or not." By section 12 of the Provisional Powers Act it is distinctly provided that the Government shall appoint such officers as may be necessary, and pay their salaries, but that both of these acts shall be subject to the approval of the Parliament. i The position may be summed up in a few words : there was but one vote for the payment of the salary of the Clerk of Parliament, and there were two men to be paid out of that vote, one of whom had deliberately resigned his position, and whose resignation had been accepted by the Parliament. In such a position the payment of either of these rival officers should have been left to a distinct vote of the Parliament. The late Resident thought otherwise, and paid the money into the hands of his servant, M. Daniela. I say " his servant " advisedly, for it is clear that from the date of his resignation he was not the servant of the Federal Government. Under these circumstances, the Court holds that the Federal Government are justified in demanding a refund of the salary paid to James te Pou from the end of September, 1897, to the 30th June, 1898, and therefore gives judgment in favour of the Federal Government against M. Daniela for the sum of £22 10s. and the costs of the case.