THE JUDGE'S DECISION.

Lyttelton Times, Volume IX, Issue 590, 30 June 1858, Page 3

THE JUDGE'S DECISION.

The following decision of Mr. Justice Gresson on the question of the Acting Superintendency at Wellington, was delivered on the 12th inst. Mr. Ludlam and Dr. Featherston having previously entered into a written engagement to abide by it. As the decision is of importance for the guidance of the provinces in any similar question that might hereafter arise, we give it in extenso.

This case comes before the Court upon a special case submitted for the opinion of the court pursuant to the 441 st of the Supreme Court Rules.

The material facts stated in the case are : That Dr. Featherston, the defendant, was elected Superintendent of the Province of Wellington in the month of November, 1857. That on the sth of April, ISSB, he tendered his resignation of office to his Excellency the Governor, who, on the 23rd of the same month accepted such resignation on behalf her Majesty. That on the 15th of March last, Mr. Ludlam, the plaintiff was chosen Speaker of the Provincial Council of Wellington, and that on the 12th day of April last, after the tender by the Superintendent of his resignation, but before it had been accepted, Dr. Featherston then, and still being resident within the province, by proclamation, appointed William Fitzherbert a duly registered elector, to be his deputy, and as such to perform and exercise all such acts and powers as by the Superintendents' Deputy Act, 1556, he should be authorised to exercise and perform in virtue of the appointment.

The questions stated for my opinion, are:—

Who, under the circumstances, is the proper party to perform and exercise the executive powers of Superintendent. Dr. Featherston? William Fitzherbert? or the Speaker of the Provincial Council? And who is entitled to the custody of the Provincial Seal, the subject of the action?

_ The solution of these questions depends en- i tirely upon the construction of the 4th Section of the New Zealand Constitution Act, and the Act of the General Assembly, entitled 'The : Superintendents' Deputy Act, 1856." The Constitution Act provided that " upon or before the issue of writs for the election of members of the Provincial Council, the electors should elect a Superintendent of the Province, and on the termination of such Council by expiration of the period fixed for its continuance, :or by the previous dissolution thereof, the elec- " tors should elect the same or some other person Ito be Superintendent, and so on from time to 'time; and every such Superintendent should hold ; his office until the election of his successor :" then ■ follows a proviso " that it shall be lawful for the • Governor of New Zealand on behalf of her Majesty, to disallow any such election; and if such ; disallowance be signified by him to the Speaker within three months after such election, the ;the office of Superintendent shall become vacant; and on any vacancy occasioned by such dis- '■ allowance, or by the death or resignation of the 1 Superintendent (such resignation being accepted by the Governor on behalf of her Majest}'), a ; new election shall in like manner take place." The foregoing section provided that, on the termination of the Provincial Council by effluxion of time or by dissolution, there should be a new election of a Superintendent, but that the former Superintendent should hold office until , the election of his successor. The last statement is followed immediately by a proviso speci- , fying three several events, other than those before mentioned of expiration or dissolution of the Council, in each of which the office of Superintendent was to become vacant, and a new election was to take place. It does not expressly state that in those three cases the outgoing Superintendent was not to ' hold office until the election of his successor, but it treats of each of them as creating a vacancy in the office of Superintendent, and directs that a new election shall take place. Now in one of the cases, viz., death—it is obvious that the office is vacant in the fullest sense of 1 the term, and that in that case at least the universality of the rule above stated, that such Superintendent shall hold office until the election of his successor, must be qualified—and in another case, viz., disallowance by the Governor —it is almost equally obvious that it could not ; have been intended to confer for a single day on a person whose election the Governor could not sanction, and -whose office is therefore declared ; vacant, the important powers vested in a Superintendent. It seems of necessity to follow that in the 3rd of the cases stated, viz., resignation, that the office was to be deemed really vaf cant and the duties for the time suspended, as in l the case of death or disallowance. Indeed it is I" plain that there might be causes of resignation ;of such a nature as to incapacitate from the ' exercise of any power whatever; not so in the . case where the rule is stated above that the Superintendent is to hold office until the election of ; his successor.—He had been elected and been approved of by the Governor, and had discharged the duties of his office,, and might be elected again, and it was therefore expedient to prevent I the inconvenience that might arise from the L powers of the Superintendent being in abeyance, ! that they should continue as they were. until a new election. It has been argued that the 25th section of the Constitution Act shows that the Superintendent's powers are never to be in abeyance. But it is obvious that in the case of death such abeyance must occur under the Constitution Act —which also omitted to make any provision whatever for the discharge of the Superintendent's duties during his temporary absence from the province. The "Superintendents' Deputy Act, 1856," was passed to supply the defects of the Constitution Act in having failed to provide for the discharge of the duties of Superintendents during their absence, and also during the cases of death, resignation or disallowance of the Superintendent by the Governor. The preample of the Act recites the expediency of making provision for the more effectual performance of the duties of Superintendents during the temporary absence of any such Superintendent, and also during any vacancy which may occur in the office of Superintendent. It professes, therefore, to provide for not only the performance of the duties of Superintendent during temporary absence from the province, but also during any vacancy which may occur in the office—whether from death, resignation, or otherwise.

Accordingly in the enacting part it adheres to the order in the preamble, and provides in the first section for .the performance, during the temporary absence of the Superintendent, of | such of the duties of his office as it had power to deal with without trenching on the powers conferred by the Constitution Act. .The modus operandi is by enabling him to appoint a deputy with all or certain specified administrative powers as effectual as those possessed by the Superintendent himself, subject, however, to the proviso that such deputy should act only during the absence of the Superintendent from the province, and in case of vacancy by his death, resignation, or otherwise during such absence, until his successor should have been elected, and only for 150 days during any one year. Having thus provided for the performance of the duties during the Superintendent's temporary absence,- it proceeds in the 2nd section to provide for vacancies that may • occur in the office from death, resignation or otherwise,—for example, disallowance; by the Governor, Sec, and it enacts that in any case of vacancy not provided for by the Ist section, the acts and powers may during such vacancy be performed by the Speaker of the Provincial Council (''unless a deputy as hereinbefore mentioned shall at the time exist in the province where such vacancy shall occur"). These last words which are included in a parenthesis, create au ambiguity, and what appears to me to be the only ambiguity in the act. It is argued by the defendant's counsel that they mean that so long as a deputy exists in the province who has not performed the duties for a longer period than 150 days in any one year, the intervention of the Speaker is excluded —while it is contended on the other side, that "a deputy as hereinbefore' mentioned" means a deputy

whose powers have been called into life by tho absence of the Superintendent, in other worda such deputy as is contemplated by the Ist section which exclusively treats 'jf the appointment" of a deputy, and provides that he shall not act except during the Superintendent's absence. It appears to me that the latter is the correct consrruction of the Act, and although the words in the parenthesis are according to such construction superfluous—they are not necessarily repugnant to the purview of the Act—as I think they would be according to the constuction contended for by the defendant. The express proviso in the Ist section that the deputy shall only act during the absence of the Superintendent, seems to me consistent with the intention of the act, as well as with the mode in which that intention is effected by the section, which concludes the provisions as to a deputy. * The second section is conversant about other cases than absence viz., vacancy- from death, resignation, or otherwise. The utmost force that could be given to the words of the parenthesis would be an inference that if a deputy were in the province the intervention of the Speaker should be excluded, but • such a construction is negatived by the express proviso that the deputy shall only act during the absence of the Superintendent, and in case of vacancy by his death, resignation, or otherwise during such absence. A distinct and positive enactment such as is contained in the proviso cannot be over-ruled by mere inferential words which enact nothing, and which may have been introduced from mere inattention to the fact that it was tautologous for them again to advert to the provision before mentioned in the Ist section for performonce of the powers by deputy. Moreover the construction contended for by the defendant would lead in the present instance to the very inconvenience which the act sought to prevent, viz., the abeyance of the administrative powers, which cannot be exercised by the deputy, whose powers have never been called into activity by the Superintendent's absence. If the parenthesis means, as I believe it does, that in all cases of death, resignation, or disallowance of the Superintendent, if there be not a deputy acting in the province within the meaning of the Ist section, the Speaker shall intervene, the Act is then consistent and complete and the defects of the Constitution Act which it -proposed to remedy, are supplied. It was intended to meet, by the appointment of a deputy, the case of temporary absence of the Superintendent, and of death or resignation during such absence. It was convenient that the Superintendent leaving the province fora short time, should appoint a deputy who would carry out his plans during his absence, and if the contingency of the Superintendent's death or resignation should occur during his absence, it was inexpedient to take from the deputy the temporary powers he had received, but in all other cases the Speaker, in whom an important trust had been reposed by the people's, representatives, "was regarded as the fittest person to. prevent the administrative powers from being in abeyance.; But, it is argued by the defendant's Counsel that I am bound to give a liberal construction to the clause of the Constitution Act which provides that the_Superintendent should hold office until the election of his successor, and that by so doing the casus omissus can be supplied. ' ■ If this were so, the second clause of the Deputy Superintendents' Act would not only be altogether' superfluous, but that clause would be conflicting with the Constitution Act, which according to Counsel's interpretation vests the

powers upon resignation, in the Superintendent

till the appointment of his successor, while the Deputy Superintendents Act gives them either to the Speaker, or according- to counsel's construction, to the deputy. It is clear that according to the construction of the Constitution Act contended for, the powers of the Superintendent must be in abeyance in one case at least, viz., death, how liberal soever may be the construction given to the clause that

the Superintendent shall hold office until the election of his successor. But it appears to me that the 4th section of the Constitution Act is sufficiently plain and may be construed according to the well known and admitted rules of construction. A proviso according to Dwaris on Statutes page 514, is, "something engrafted upon a preceding enactment, and is legitimately used for the purpose of taking special cases out of the general enactments, and providing spe-

cially for them." Now, if we apply this lan-

gauge to the clause in question, we find that the generality of the clause that every such Superintendent shall hold office until the election of his successor, is followed immediately by a proviso stating three several cases, in all of which the office of Superintendent is vacated, and in two of which at least (disallowance and death) the Superintendent does not hold office until the election of his successor—thus the proviso is legitimately used for taking the three cases mentioned out of the general enactment. Several cases have been cited upon other acts of Parliament to shew that courts of law will give a liberal construction to a statute when such a-

construction is required to give effect to the in-

tention of the Act. No doubt the fact is so, but the intention must be such as may be gathered

from the whole scope and purview of the Act. ' I fully subscribe to the following language of the learned Baron Parke, cited at page 587 of l)waris on Statutes;—

" The rule by which we are to be guided is, to look at the precise words, and to construe them in their ordinary sense, unless it would lead toauy absurdity or manifest injustice; and if it should, to vary and modify them so as to avoid that which certainly could not have been the intention of the Legislature. We must put areasonable construction on their words." Now T adopting this language; it appears to me that I am bound to avoid a construction of the Constition Act that would make a Superintendent hold office after his death, or even after his election; had been disallowed by the Governor, and that I am also bound, looking to the design and object of the Superintendents' Deputy Act, to avoid a ruction of the parenthesis in the 2nd section; which would contradict the express proviso that the deputy was only to act during the Superintendent's absence, and which would assume that the Legislature had failed to meet the present

at 'least practically, inasmuch as the deputy's powers, if theyexist at all, at least have ;not been called into .activity. I am, therefore, of •opinion that the plaintiff, as Speakerof the Provincial Council, is the proper person to perform and exercise tire executive powers of Superintendent, and that he is entitled to;the custody ef 'the Seal, the .subject of the action. >H. B. Gkesson, Judge.