SUPREME COURT.

Hawke's Bay Times, Volume II, Issue 82, 19 January 1863, Page 2

SUPREME COURT.

IN BANCO. The following judgment was delivered by His Honor Mr. Justice Johnston, on Saturday, the 3rd instant, at Wellington. Regina ex relatione Eyes v. Baillie. After having considered this case with great anxiety, I cannot confess to have arrived at a conclusion respecting it which is perfectly satisfactory to my own mind, and although it is a source of comfort to me to know that the decision which I am about to pronounce may be subjected to the review of the Court of Appeal with but little delay and expense to the parties, I cannot feel very sanguine that the judgment even of that tribunal will be so unhesitating as to prevent the necessity for the interference of the Legislature hereafter to remove doubts in such cases, or possibly for the Constitutional action of the Executive Government of the Colony with respect to the particular case. For it seems to me that the conjuncture of circumstances which has arisen here is one which the framers of the New Provinces Act did not contemplate, and that in trying to construe that Act and the Constitution Act together, we have probably been endeavoring to arrive at the intention of "the Legislature with respect to a matter as to which it had no settled intention ; or at all events the Court is called upon to declare the operation of these Acts under a combination of circumstances, which in all probability was not thought of by the framers of the latter Act, but which, if contemplated, would have been prov ided for by express enactment. And at the outside of my observations I must remark; that in dealing with the case in the onlv manner in which this Court can deal with it as raising a dry question of legal construction, considerations of political expediency and public inconvenience can be referred to only for the purpose of arriving at the intention of the Legislature where its meaning may be ambiguously expressed, or where the inferential operation of unambiguous language may be fairly open to doubt. I must further remark, before proceeding to dispose of the question of law, that this court has nothing whatever to do with the question whether the defendant, if ho possessed a certain power by law, exercised it wisely or unwisely, properly or improperly, whether or not his proceedings were constitutional or no—as the phrase goes—(that is whether they were within the spirit of the law)| or whether he capriciously abused the power with which he was invested by law. And I allude to this matter only because the affidavits filed by the defendant contain statements apparently intended to justify his conduct, and shew that he had good reasons for thinking that he continued to hold the office till his successor was appointed, and also that he believed, or had been advised, that the Council had not been lawfully elected. With all this justificatory and explanatory matter the Court has really nothing to do, although it may be well remarked, in passing, that if the Council was not validly constituted according to law, the defendant s act of prorogation was a nugatory one. If it was not a Council ho could not prorogue it; but the question of the validity of the constitution of the Council is not before the Court in this case ; and the only question to be determined by the Court in this case is whether the defendant is now by law the Superintendent of Marlborough or not. If he was Superintendent at the time he prorogued the Council, and had power to progue it, the subsequent election by a majority of the Council, of another person, to be Superintendent, cannot displace him, as the Council was not in a position to go on to the election either of a B«eak«r or a Superintendent. r— - It seems to me that one of the two last mentioned questions may be at once eliminated from the case, viz., the question whether the defendant, if he continued to be Superintendent, had power to prorogue the Council; for although it has been suggested in the course of the argument that he might continue to be Superintendent for necessary administrative purposes, but without having such powers as that of prorogation, and it would seem very intelligible and very reasonable that there should be provisions to that effect, the simple answer is that the Acts are silent upon the subject; and a Court of Law, in construing statutes, cannot supply omitted provisions however reasonable or necessary. Under the Constitution Act there was no necessity for fh"e limitation of the power of a Superintendent, holding office till his successor should be appointed, after the disso-

lution or expiration of an old Council, because his successor would be elected before any new Council come into existence whose status or acts he could affect by his powers. The one question, therefore, left to be determined is whether the defendant was Superintendent at the time of the prorogation. Now it is conceded that he was at one time Superintendent; but nothing very definite has been suggested about the cessation of his office, except this, that it must have been intended by the Legislature that the office of Superintendent of a new Province should cease on the expiration or dissolution of the Council, or that at all events he'should have no power or authority to deal with a new Council, when it was in a position to elect its Speaker and-proceed to elect a new Superintendent No doubt it might have been inconvenient to provide that the office of Superintendent should be at an end for all purposes ou the dissolution of the Council and that it would have been convenient to provide that he should continue in office for certain purposes, until his successor should be appointed, but should be incompetent to act as the defendant has done in this case. But there are no provisions made in the New Provinces Act to secure such convenient arrangements or to prevent such inconvenience. The questions which have arisen are, whether the unambiguous languake of the New Provinces Act, or the intention of the Legislature to be inferred from the context in order to explain ambiguous language, either provides for the cessation of the office of Superintendent before the appointment of a successor, or repeals the provision of the Constitution Act respecting it; or whether the language of the Constitution Act of itself precludes the application of the provision to any but a Superintendent elected according to the mode therein prescribed. Now it may be convenient to deal with the last of these questions first. The Constitution Act, after establishing six Provinces in New Zealand, by section 2, goes on to provide by section 3, that for each of the “ said Provinces hereby established,” and for every Province hereafter to he established as hereinafter provided, there shall be a Superintendent and Provincial Council: and the New Provinces Act, sec. 1, s.s. 5,' provides that every Province established under the Act shall, subject to the provisions thereof, be deemed to be a Province established under the Constitution Act, and by the Imperial Act of last session (section 7) of the Constitution Act, is made applicable to all Provinces at any time existing in the Colony, Then by section 4 of the Constitution Act, it is enacted, that upon or before the issue of writs for the first election of members of the Provincial Council for any Province established by or under this Act, the persons qualified to elect Members of the Provincial Council, shall elect a Superintendent ; and on the termination ot the Council by the expiration of the‘period fixed for its continuance, or by the previous dissolution thereof, the persons qualified shall elect the same or some other person to be Superintendent, and so on from time to time. It is then enacted, that every “such Superintendent” shall hold his office unfit the election■ of his successor ; but this is made subject to the provisoes that the office may become vacant ; 1, by disallowance by the Governor of the election within 3 months, in which case a new election is to take place ; 2, by the death or accepted resignation of the Superintendent ; by the removal of the Superintendent by her Majesty on an address by a majority of the Council. There are cases therefore under the Constitution Act, in which vacancies might occur, which to some extent might be inconvenient to the public. We come now to the New Provinces Act, 1858, which must now be taken to have been duly passed, and to have been infra vires of the GenerAssombly, (by virtue of the Imperial Act of the last session of Parliament). The New Provinces Act, after providing for the circumstances under which New Provinces might be established, the definition of the limits, the number of members of the Provincial Councils—(it being evidently assumed that those Councils would come into existence under the Constitution Act) —and making some further necessary provisions, proceeds to enact by sec. 9, that “ The Superintendents of Provinces established under this Act, shall be elected as hereinafter provided ; and ns far as the express enactments of the Act concern Superintendents, the matters principally considered arc the time and mode of election, the power given to Superintendents by the 11th sec., of being elected and sitting as members or Speakers of Provincial Councils, and the withdrawal from Superintendents by the I2th section of the power of assenting to Bills on behalf of the Governor. Nothing is said expressly about the tenure of office of the Superintendentbut it cannot be taken that that matter is left entirely at large ; for it is dear from the language of the 10th section that certain portions of the 4th section of the Constitution Act relating to that important subject were deemed by the Legislature to continue in force as affecting Superintendents of New Provinces under the new Act. The 10th section of the New Provinces Act expressly provides that whenever the office of Superintendent shall become vacant in any of the cases provided by the Constitution Act, a new election shall in like manner fake place on a day to be f j} o 3 p rt Z' o' Now the cases of vacancy provided for by the Constitution Act arc the cases mentioned under the 10th section, wherein the tenure of office given to the superintendent, “ until the election of liis successor,” is qualified by the provisoes, that the Governor may disallow the election of Superintendent, and on such disallowance signified within (hroe months to the Speaker of the Council, the office of Superintendent shall become vacant. 2nd, that Her Majesty may remove the Superintendent on receiving an address signed by the majority of the members of the Provincial Council praying for such .removal. Moreover, vacancies by death or accepted resignation of the Superintendent are provided for. If then the Legislature contemplated the application of the provisoes of the 4th section of the Constitution Act to the status and tenure of office of the Superintendents of New Provinces, how can it bo said with any shew of reason that they did not

intend that the substantive, express, and positive enactment, of which those provisoes were modifications, should apply to such persons. No doubt a great inconvenience may be the result; but it is one which if contemplated would in all probability have been expressly provided for. On the other side, there is great force in the argument adduced on behalf of the relator, Mr. Eyes, that the language of the 10 th section of the New Provinces Act is imperative, peremptorily requiring the Provincial Couucil to elect a Superintendent within one month after the election of the Council, and that this position would be nugatory and delusive if an old Superintendent remaining in office till his successor was appointed, could, by e xercising his power of prorogation under the 16th section of the Constitution Act prevent any election of a successor. But the simple answer to that question seems to be that although it may be most inconvenient that a Superintendent should have such power yet the inconvenience has not yet been provided against by the Legislature, and that even if this Court were satisfied that an omission or oversight of the Legislature has been taken advantage of by the defendant in order to exercise a statutory power in a manner not contemplated by the Legislature, aud even if it were clear to the Court, (which it cannot be, as the Court cannot go into the political merits of the case), that this power has been used, contrary to the interests of the public, and in defiance of constitutional principles, this Court has uo right to go beyond the well-settled principles of construction of statutes, for the purpose of supplying omissions and defects in legislation. I am obliged to come to the conclusion on the whole, that as far as the intentions of the Legislature can be discovered from the language of the act, it was intended that the tenure of office of the Superintendent’s of new provinces should be the same as that of the old Superintendents, and that they should have the same powers and duties except where express provisions of the latter Act introduced alterations; and that the inconvenience which has occurred, not having been foreseen, has not been provided against. I do not think that this case can be brought within the principle laid down in the case of O'Flaherty v. M'Dowell, in the House of Lords, which was much and properly laid on by the Counsel for the relator—for this simple r eason, that the intention of the Legislature on the question at issue, is not apparent on the face of the New Provinces Act. The principles of construction applicable to this case arc thus laid down in that well-known work of Sir Fortunatus Dwarris on Statutes. “ In interpreting the law, judges are to explore the intention of the Legislature ; yet the construction to be put upon an Act of Parliament must be such as is warranted by, or at least, not repugnant to the words of the Act. Where the object of the Legislature is plain and unequivocal, Courts ought, without violence to the words, to adopt such a construction as will best effectuate the intentions of the law-giver. But they must not, in order to give effect to what they suppose to be the Intention of the Legislature,put upon the provisions of a statute, a construction not supported by the tvords, though the consequence should be to defeat the object of the Act." The public inconvenience and danger which may result from holding the Superintendents of these new Provinces to be possessed of powers which may be used most oppressively, have naturally induced the court to examine the provisions of the Acts with critical care, and a desire to construe them, if possible, so as to avoid obvious inconveniences, and I think it but right to say that my ultimate decision differs from my first impression and to repeat that the conclusion at which I have arrived is not so satisfactory to my mind as I could wish in a case of so much importance. Still, being obliged to decide the case to the best of my ability, and seeing no reason for supposing that any more light would be thrown upon the matter if I were to make the rule absolute for the issuing of the information, I am of opinion that the rule must be discharged; the relator, however, if he so wishes, will have leave to appeal. Rule discharged. On the 6th January, on the motion of Mr Brandon ou behalf of the relator, the Court granted him leave to appeal to the Court of Appeal, at its first sitting on the 10th February, at Christchurch.