DR. POLLEN'S PENSION.

Globe, Volume XXIII, Issue 2302, 19 August 1881, Page 3

DR. POLLEN'S PENSION.

fBY Telegf.aph.l [fbom the own cobkespondent op inr " PBES3."j WELLINGTON, August 18. The followirg is the opinion of the Solicitor-General on Dr. Pollen's pension, which has not previously been published. Mr Raid says—" I have carefully considered tho various questions put to mo on the attached papers, and now beg to reply lo them in their order, adapting my answers to the circumstances of Dr. Pollen's case—(l.) Cin a Civil servant who rerigna claim hia pension as a matter oE right ?—lf a Civil s rvant resigns i U office absolutely he cannot claim his p. u&ion as a matter of right. The act of resignation usually carries with it a surrender of the privileges attached to tho office, and in the Civil Servico Acts the expressions ueed in r<SDect of officers claiming superannuation allowances are to "retire from the service," " retiring allowance," &?., which convey quite a different meaning from resignation. But, I think an efficer may, in resigning his office, reserve the question of his right to receive a retiring allowance, and this Dr. Pollen did in his letter of the 30th October, 1876, and his resignation was accepted upon those terms by the Governor. (2.) If a oivil servant is called to tho Legislative Council can ho remain a civil servant (A) under tho Disqualification Act, 1876 ?—Speaking generally, a civil servant — i.e., one holding any office, place or employment, &c, within the meaning of the Disqualification Act—should not be capable of being summoned to tho Legislative Council, but tho Disqualification Act of 1870 excluded from its operation members of the Executive Council holding certain Ministerial offices. Under this Act there is no prohibition of a person being called to the Legislative Council while a civil servant so long aa ho also remains a member of the Executive Council and holds his Ministerial office. Thoro is a similar provision in the Disqualification Act of 1576 to which tho same remarks would apply, subject, however, to the terms of section 14, which enacts that a member of the Civil Service shall not, while he ia such member or for six months thereafter, bo cipablo cf holding a seat iu the Legislative Council. As a matter of fact, members of tho Executive have held offices in tho Civil Service both when the Act of 1870 was in operation and since tho present Act came into force. Tho only one which occurs to mo at present is that of the Land Claims Commissioner under the Land Claimß Act, 1856, but as I presume no salary, &c, is attached to tho office, there ii, of courso, no disqualification on that ground, W id being held by a member of the Executive, comc-3 within the viow I have expressed aa to tho operation of the Disqualification Act. From Iho papers, it appears Dr. Pollen resigned his office some days prior to tho passing of the Act now in force. (3) Was tho memorandum as to departmental arrangements at Auckland legal so far as the agreement as to £3OO for paying Im porial pensions wan concerned ? —I have read Sir Julius Vcgel'a memorandum of 6 h January, 1862, which can hardly bo called an agreement, but is rather a statement of arrangements made aa to tho conduct of Treasury business in Auckland, including the , terms upon which Dr. Pollen undertook the i payment of the Imperial pensions. The i latter were that out of certain commissions i allowed to tho colony by tho Imperial i Government, Dr. Pollen should bo allowed an i annual sum of £3OO in lieu of a liko sum paid him by the Treasury. I do not think

this arrangement can be looked upon in the nature of an agreement, becauso the commission was the money of the colony and could ho apportioned as it pleasod, whotber Dr. I'ollon was a party to Buch apportionment or not. i'he Treasury could have cast the duty of paying these pensioners upon him, and paid uim out of this commission without his sanction or knowledge. Indeed, the main object was to relieve " the Treasury of some departmental expenditure," and tho fact that there was a kind of reservation of Dr. Pollen'B rights in respect of depjrtmental service does not in my opinion weaken his position. On the contrary, it was only suoh an equitablo stipulation as an officer so situated might well mako, and so long that it did not contravene the law it was one within the provinoo of the Treasury to allow. As to tho latter point, Dr. Pollen's claim is made under the Acts of 185 S and 1861, and in tho«o Acts there is nosuch disqualification as in the Act of 1866, whioh provides that that Act shall not apply to offices to which a salary is not appropriated by the Colonial Legislature. Had Dr. Pollen become an cflieer of tho Imperial Government and been paid by them, of course he would have had no claim on the colony, or oven if this commission had been specifically devoted by the Imperiil Q-ovcrnmont to defraying tho expenses connected with paying these pensioners, then I think his claim would havo beon untenable. But it is treated as tho money of the colony, and by it devoted as it pleases. Dr. Pollen still remains an officer of tho Colonial Government, and by discharging his duties is, by the memorandum in question, assumed to be under the control and direction of that Government. For these reasons I think tho arrangements made by the Treasury should not bo allowed to prejudice any claim of retiring allowanco which Dr. Pollen may legally establish. I may add that when papers were previously before me the Treasury memorandum was not with them, and I have now expressed an opinion on it for the first time. (4) If Dr. P..llen is entitled to ponsion, up to what date must he claim ? I think this claim should be made upon the average salary of the offices held during tha last three years of the period of service. This is the language of section 3 of tho Act of 1861, and it does not, in my opinion, affect tho claim, although the salary was not actually drawn. Ido not think it necessary to go into the questicn as to the right of a claim up to any date he pleaees within the poriod of his service and waive any portion of such service, because, in this case it would not make any real difference. (5) Could he hold offices and a'ill act as a Minister of the Crown ?—This question is disposed of by my answer to No. 2 abovt". (6) As it appears Dr. Pollen did not resign his offices till 30th October, 1876, must not his ponsion count for the salary drawn during the last three yearß ? —Also disposed of by No. 2 above.—W. 8. Beid. 25th June, 1878. Note.—Tho above series of questions are unsigned. They are in tho handwriting of Mr Stout, tho AttorneyGonerul of tho period.