SUPERINTENDENTS IN THE GOVERNMENT.

Lyttelton Times, Volume VI, Issue 385, 12 July 1856, Page 4

SUPERINTENDENTS IN THE GOVERNMENT.

Mr. Fox, pursuant to notice, rose to move " That although in the formation of a Ministry, and during the Session of the General Assembly, while under the immediate control of that body, it may be expedient that Superintendents of Provinces siiould be; members of the Executive Government of the Colony ; yet this hoxise is resolved that under any other circumstances an office in the Ministry of that Government is inconsistent with tenure of the office of Superintendent, necessarily involving any Superintendent holding fsuch double office in suspicion of provincial partiality, as well as affording opportunity for tiie txercise of such feeling, should it exist. And this house is of opinion, that any Superintendent who may, during a Session, have taken ofnee as a Responsible Minister ought, at some reasonable time before the Assembly shall be prorogued, to annonnce to the house which of the two offices he will abandon at the close ofithe Session."

Mr. Fox sai'i that he was sorry that he had been compelled by the hon. member the Superintendent of kelson to put this motion on the paper. When, on a previous occasion, he had asked that lion, member whether he intended to resign one of his two offices, hi' had declined to answer, saying that he (Mr. Fox) had no right to dictate to him what he should do in respect of his Superintendence He (Mr. Fox) had no wish to dictate; it was not his side of the house from which dictation usually came ; nor did tie wish to know what the hon. member might do about his Superintendency ; but he had a right to know what course he intended ro adopt as to the office he held in the General Government, and whether he intended to retain the Superinteudency with it. It was owing to the last and unsatisfactory reply of the hon. member, that he had been obliged to bring forward this motion ; and if the consequences should prove unpleasant to the hon. rhember, he had only himself to blame. As aground for his motion, he would state tv the house what was the law on the subject of double offices. In doing so, he would not merely quote, as some hon. members occasionally did, a few pages of some popular writer, but he would refer to the authorities of highest order. Having had access to the library of his Honor Chief Justice Martin, he had carefully examined the peases in the law books, and for the accuracy of the law he was about to lay down, he would stake his reputation as a lawyer. There were three points in the case. In the first place, it was a clear rule of law that where two offices are incompatible they c.nnot be held together. " This," says, a learned judge, in a case in the Court of Querns Bench, " is founded on the plaiuest prineiprcs*of public policy, and has obtained from the very earliest time." In Comyn's Digest, Officer B 6, the law is thus summarized, —" The grant of an office to one who hath another office incompatible is not good, for the first will thereby be void. As if a Forester, by patent for life, be made Justice in Eyre of the same forest pro hdc vice, the office of Forester will be void; for it is incomp;itible, being subject to correction by the .Justice in Eyre. If a Judge of the Common Pleas be made a Judge of the Queen's Bench ;if a Town Clerk be made an Alderman, or a Jurat be elected a Town Clerk. A Bishop cannot have a benefice in commeudam in his own diocese, for he cannot visit himself." The doctrine was here broad'y laid down, and particular instances given to prove, that where two incompatible offices meet in one person, that which was first conferred, becomes void. The next point to establish was, whether the offices of Superintendent and Executive Councillor were incompatible Here the law was equally clear, and its applications equally strong. In Bacon's Abridgement, Officer X, the law is briefly stated thus, —" Offices are said to be incompatible when, from the multiplicity of business in them, they cannot be executed by the same person with enre and ability ; or where, being subordinate and interfering with each other, it would induce a presumption that they cannot be executed with impartiality and honesty. A Coroner made Sheriff ceases to be Coroner ; a Parson made a Bishop vacates his cure, or a Judge of Common Pleas made a Judge of Queen's Bench. It w;:s held that the offices of TownjjjClerK and Alderman, in the borough of Weymouth, were incompatible, for the p.iwer of removing the Town Clerk lay in the Mayor, Aldermeu, and B; i.ift's.jfand he would as an Alderman havel to rote on the question of his own amotion." Now this was precisely the case with the Superintendents- As members of the Executive Council, they might have to vote in their own case. Suppose a majority of one of the'i'rovincial Councils should request the Governor to remove one of the.n from his office, under the provisions of the Constitution Act; who would have to decide ? Why, that very Executive Council, of which they were members. If the Alderman could not be Town Clerk because lie might, among the other Aldermen, have to vote on the question of his own removal froisi the Town Clerkship, clearly the Executive Councillor could uot be Superintendent because lie might h;ive toycte on the cmestion of his own removal. No iif/Lbuity could detect any difference between the ca&es; they were identical and conclusive. The hon. member here referred to a number of other decided cases, which, be said, were all exactly in point, and want to show ili.it the two offices held bj' the lion, members ibr the Citj of Auckland a d the .Town of Nelson weroabsolutely incompatible The third and last point was, whether the acceptance of the second office, ipso facto, made the first void, or whether it only rendered it voidable, at the pleasure of some higher authority, as the Crown or a court of law. Her.c the case was again adverse to the hon. gentlemen opposite, as ihe very last case but one which had been decided, was to the point. That case was Rex v. Patteson, in -i Bart, and Adol. 9, which had been decided in the Court of Queen's Bench, but a few years ago, by four judges of the Court sitting in banco. The case was that a Justice of Peace within ;l borough had accepted the office of Treasurer of the borough, and the question was whether the acceptance of the Treasurership did not vacate tho Justiceship. The learned judges laid down the lav.- to the iuilowing effect, —" It seems to follow that the acceptance of the second office will not

absolutely avoid the first, unless it be made by and ■with the privity of that authority which has the power to accept the surrender of the first or to amove from it." Here, said Mr. F., that was precisely the case. The hoi), members who were Superintendents had accepted their second office with the privity of the Governor, who had power to accept the surrender of their Superinteudencies. " Upon principle," continued the learned judge, " it seems that an officer cannot avoid his office "by accepting another, unless his ollice be such as he can determine by his own act, or unless that authority concurs in the new appointment which could accept the 01 amove from the old one." The present case was exactly in point.. The Superintendents had accepted their offices in the Executive Council with the consent of the Governor, who was the authority who could have accepted the surrender of their Superhitendeneies. To keeo up his argument. He had shown distinctly that two inconsistent offices could not be held together. Me hud shown that the offices of Superintendent and Executive Councillor were inconsistent. And, finally, he had shown that their nature was such that the acceptance of the latter, ipso facto, then and there vacated the former. The offices of Superintendents of Auckland and Nelson were undoubtedly now vacant, and he congratulated the late Superintendtnt.s on having relieved themselves of the weight of care and responsibility which no doubt sat so heavily upon them. Having done so, and proved that they were no longer Superintendents, he would now, with the leave of the house, withdraw his motion, which, by his line of argument, became unnecessary. Mr. Macandrew .said that, in the able speech of the hon. member for Wanganui, one strong argument had been overlooked. In the case of Colonel Wynyard, who wajs at the same time Officer administering the Government and Superintendent of Auckland, the two offices had been pronounced by a very high authority to be incompatible with each other. Mr. Cari.eton asked whether, if the Superintendents of Auckland and Nelson had vacated their offices, the Superintendent of New Plymouth, when he accepted office, had also, ipso facto, vacated his. Mr. Daldy would remind huii. members that when the question was put to the hon. member for New Plymouth as to what course he would adopt witli reference to holding the two offices, lie had given a prompt and straightforward answer. After a few words, the motion Was withdrawn by consent.