THE PENSION QUESTION.

Nelson Evening Mail, Volume XVI, Issue 195, 17 August 1881, Page 2

THE PENSION QUESTION.

THE COMMITTEE'S EEPORT, (Per Preaa Association.) Wellington, Tuesday night. The Public Accounts Committee which has been directed by the House to consider and I report upon the pensions granted to Sir Win. I Fitzherbert, the Hon Mr Gisborne, and Mr Domett have the honor to report that on December 2od, 1869. Mr Fitzherbert applied to the Colonial Secretary for a superannuation allowance, having on ihe 2nd of November previous tendered his resignation of the office of Commissioner of Crown Lands. He based his claim on Sections 31, 32, and 33 of the Civil Service Act 1866. To entitle him to a pensiou under that Act it was necessary under Sections 32 and 33 that he should have attained the full age of sixty years at the date of bis resignation, and that he should have been fifteen years in the Civil Service of New Zesiaud. If those conditiona were fulfilled tbo superannuation allowance would be "an annual allowance of half the \ average annual salary received by him during the two years preceding his superannuation." With regard to the first of these conditions, Mr Fitzherbert seems to havo been in hia 60th year but not of the full age of 60 years when he tendered hia resignation which was accepted to take effect ' nearly eight monthg afterwards. With regard to the second condition, the public records show that Mr Fitzherbort joined Ihe Provincial service of Wellington at Secretaiy, which wag held by the Attorney-Genera! in ' office when tho peaiion was granted to be equivalent to the Civil Service of th« colony in computing: pensions on the 3rd Novorobn, 185 S. Ha held tha political office of Colonial Treasurer from the 24th No- '• vember, 1864. .tu the 16th of October 1865, in Mr Weld'i Ministry, and again held the political office of Colonial Treasurer and Commißsioaer of Sump 3 and a member of the Executive from the 24th August, 1866 to 28th June, 1809, in Mr Stafford's Ministry^ The opinion of both Mr Attorney. General* Stout and Mr Attorney-General Whjtaker is clearly that tha acceptance of apolitical office is incompatible with the position of a civil servant, and tho latter authority ex presaly lays down that "the holder of an offlco accepting another office incompatible with it ipso facto vacate* the first." it is evident therefore that the entire service of Mr Fitzherbert, deduction the time dariDg which he held political office, does not ex- - oeed thirteen years It may be further observed that as Mr Fitzberbert held the political office of Colonial Treasurer on the 9th October 186fi (the date of She Act uuder which b« claims) and was not therefore a Civii Servantjat that time, be waa not entitled under the provi.ions of section 31 of that Act to claim the time during which be held offica in the Provincial Civil Service of Wellington in the computation of his rethiog allowance. If that time is not counted his le gth of Bfirvice would only be six years three months and eight days. Wiih regard to the amount of pension, Mr Fifz'iertert was granted a retiring allowance on tne basis of half the annual salary he drew as a civil servant, but the law was not complied with in thi3 particular inasmuch as during the two years preceding hi 3 superannuation he was for a large portion of the time a Minister of the Crown and consequently not in receipt of salary as a civil servant, and further he was, during the last seyen months of his computed time, absent on leave without salary. The evidence shows ttaafc the Ministry which recommended the granting of the allowance were aware that the tenure of political office was an important feature of the case, and in granting the allowance they considered that the case should be specially treated partly, because their own I judgment was in favor of that course, and partly because their immediate predecessors bad granted Mr Fitzherbert leave as a oivil servant while he was on a mission In hia capacity of Minister of the Crowa The

Committee think it right to point out that the Governor's warrant granting the allowance is inaccurate in its recitals inasmuch as it states as a ground for granting the pension that Mr Fitzherbert '• had been actually employed in the public service of New Zealand, and for tbe period of 16 years " which could not be the case if his political service were not included, and further states that he had " during the last two years of such service" been employed at an average salary of £080 per annum." Mr Gisborne claimed his pension on 30th March 1875 under the " Civil Service Amendment Act 1861." The Civil Service Act of ISGG, Ciause 29, in repealing the Act under which Mr Gisborne claimed a pension at the age of 50 years, reserves the rights "of persons appointed to offices before the passing of that Act," but Mr Gisborne at the time of claiming his pension was not holding any office that he held in 1866 when that Act was passed, and according to the legal opinions quoted below was therefore not entitled to claim under it even if he had not been deemed to have ipso facto Tacated all subordinate offices by the acceptance of '. the political office of Colonial Secretary "on July 5, 1869. Without raising the latter point the Solicitor-General, Mr Reid, writes on the 3rd November, 1876 : "I have given this " matter very careful consideration and have come to the conclusion that retiring allowances can only be .claimed under the Acts of 1859-1861 in respect .of offices held prior to the passing of the Act of 1866 and so long as a person holds the office he held at the time of the passing of the Act of 1866 he would be entitled to the privileges by that Act preserved to him, but where, subsequently to that Act, such person accepts a new office, I think he cannot in respect of the new office claim the ''privileges of tbe Acts of 1859 and 1861." This legal opinion is confirmed by the Attorney General, Mr WhUaker, who on the 6th November, 1876, writes:— "l am of opinion that in its legal aspect as a riiatter 5f interpretation of statutes the "above opinion of the Solicitor General is correct in stating the law as it stands at present. The only remedy appears to me ia a declaratory Act of the Assembly: I think that should be prepared as scon as the Assembly meets again." No such declaratory Act was passed in 1877, the year following the granting of the pension, but in 1878 the "Civil Service Act Amendments Act " was .passed which Acts apparently in' tended to cover this and similar cases. ' Mr Domett's pension of £559 103 6d per annum claimed under the " Civil Service Superannuation Act,. 1858 "and the •' Civil Service Amendment Act, 1861," was granted on the 14th August,, 1871, and ho entered the colonial service on the ! 4th February^ IS4B, and claimed pension from tkat date or for 23 yeftr« and 6 months, but the claim for | the time he held tbe political offices of Premier and Colonial Secretary in 1862-1863 j was disallowed and his time was computed at 22 years and 2 months service. The time that he was absent from his offlca in Nelson to attend the. meetiag; of the Housa of Representatives; in Auckland and Wellington during'some months of each of six years does not appear to have been deducted. He claims to have held tbe office of Secretary of Crown Lands, during almost all the period that he was Premier, and therefore it would appear that* the higher, office 'was not then "treated" as incompatible 'with the lower; 'but he was duly rear pointed Secretary for Crown Lands on tha 24th December, 1863, only 35 days after be had ceased to hold the offices of Premier and Colonial Secretary. On every other point his pension appeal's to have been granted in accordance with the two provisions of the two! Acts of 1858 and 1861 under which it was claimed. The Committee has also to place before the House an opinion of the Solicitor- General oa Dr Pollen's case, which was not furnished to the Committee until after its report of that case on the Ist July last. The reason the Committee had not had this opinion before it, was that it was not filed with the papers I relating *o the case and its existence was un- J known to the Government. Ia submitting to the House the accompanying papers and the i foregoing summary of the facts in their respective cases referred to it, the Committee expresses its opiDion that although there has been irregularity in the granting of the pensions to Sir William Fitzherbert and the Hon. Mr Gisborne and the Hon. Dr. Pollen, the Committee does not consider that the cir- j cutnstances of the several cases are such as would render it advisable to repudiate liabilities based on the Governor's warrants, ai,d therefore recommends that all doubts as to the illegality of these pensions fihonld be removed 1 by a special Act.— (Signed) it. J. Stbvbhb, .Chairman. . ,