THE SUPERINTENDENCY.

Southland Times, Volume I, Issue 87, 30 December 1864, Page 2

THE SUPERINTENDENCY.

■ "We extract the following, with reference to the Superintendency of the Province," from the Otago Daily Times of the 2Cth instant : — < ••.,/: On Saturday Mr Justice_ Chapman delivered the judgment of the Court, by consent, (for .the purpose of avoiding delay ' until the end of tho holiday), in the case argued* on,-\Friday, relating to tho Southland Superintendency. „ -_ „♦ ', x In the matter -of James 'Alexander Ttobprtson Menzies, Esquire, and in the matter of the NewProvinces Act" of 1858. i - ■ ' V l ' ' This is a rule calling *bn-Dr. Menzies to show* cause why an information in the nature of a wrifcof qiio warranto should not be filed against him to compel him to show by what authority he continues to exercise the office of Superintendent of tho Province ,of Southland-— : a Province established under the New Provinces Act of 1858. The rule was argued yesterday (23rd Dec.), 1 by i Mr Smith on behalf of Dr. TVEenzies, ani'byMr._ James Prendergast on behalf of "the* Rclaforf-a member of the Provincial' Counci l; arid~£lie facts, about which there is no dispute, are fully, disclosed" in the affidavits filed in support of the rule. 1 The facts are as follows :— Dr. Menzies was tho first -Superintendent of Southland. '_' The 'first Provincial Council 'expired dy effluxion of time daring the present year, and? a new Council has Binee been elected. \At their- first meeting, the said Council, after' .lfaving "elected J. Wilson, Esquire, as their Speaker, proceeded to the election of a Superintendent, under the provisions of the New Provinces Act. The Council consists of - twenty members, of* whom two were absent. There were twb candidates, namely; the said Dr. Monzics, and Theopliilus Healo, Esquire. Tho Speaker did not vote, and of the remaining seven- ~ teen members, Mr. Heale.had nine votes, and T)r. Menzics eight votes. • "- .----->* The 10th Section of the New Provinces Acfc requires the Council to elect some person (qualified a» therein mentioned) to te Superintendent by an '• absolute majority," and Dr. Menzies, consider- - ing that Mr. Heale 'had not been elected by_an , absolute majority of the whole Council, Btill holds the office, claiming so to do'under the authority of the 4th section of the Constitution i Afct, 'which, enacts that " the Superintendent "shall hold 'office untill the election rof hi? successor." 1 - The relator on tho other hand> conßvl<<ri<^ that the statute requiring- an ' " absolute n.ujority n has been complied with by tho election of Air. Heale, treats the retention of office bj Dr, Menzies as a' usurpation, and contends V&\\ oven if Oiere be no -valid election, there is no htatulory authority to, enable the Superintendent of a New Province r .to coni inue to hold office, inasmuch aa the clause upon, •which Dr. Menzies relies apjk3 only to Super-

intfciidcnfc9 of tire origindl-six'proVincOs^tabiisb.ed ; un^r- the -Imperial Constitution _Acr. ' sVo' questions? have /been. " submitted to tho 'Cohj*;. I.,. "Whether ttfe election£,of- Mr. Healo 'is'vandj'andifnot)' & Wli ether Dr. Menzies "can legally retain office 'as,, he thinks he can. .-Tho first question as to the -validity of Mr. Heale's election turns upon' tho meaning jof tho words .' " absolute majority,", in the 10th;<8ection of the ,' 'TXew Provinces Act. ' Leaving out! words which apply to formalities not in question under this ' wile, * the section runs thus :— The Council , * *i after electing their speaker ' # . • .shall, by an absolute majority, / * elect some person, qualified, &c. (as specified), to I i bo Superintendent of the province."', . If the language of the constitution Act of Victoria had been . followed— namely, "The concurrence -of an 'absolute majority of the whole nutnber of the ■* i' 1 members &c.," the present doubt ccjuld have no place. Indeed, the meaning of tlie Victorian Act would bo clearly expressed without' the word absolute, which i s redundant ; and lite language of the American Constitution, withotit the word absolute, is equally free from ambigdity. " The person;" it says — "liaving,; the greatest 'Humber of .votes shall be President; if such- iumber be a majority of the whole number oftM electors."' But w-e have to deal, with the phrascL " absolute ' majority,"" not followed.by any wortla to indicate V of what, and Mr. Prendergasfc has su-gued -with considerable ingenuity, ,that the'^ords were ' iatisfied by a majority of those present, and the only object of the words wastopreve'nt'an election by amero' quorum, and to provide jfchat there •hould be at least an 'absolute" majbrity present^ But this .construction appears top artli(jial, and so' | remote 'from ordinary construction, to completely ■introductory, of ,a new .'element, as \o {lead us to say. that if. .that had been the meaning of the j . Legislature they would have so expressed it. 1 ' We | ' 'are',. htfwcv.er,. bound toggivo, if possible, - some meaning to the word absolute ; and, inthp absence of other explanatory' or equivalent words, not to ' .treat it as xeduudant. Absolute mcaiM&n ordin'aryllanguage, set free, that is free froiivqualifica- i tions — unqualified. The requisite majmty of the votes of the members is to be a ms^oritj^HmplioUer — without qualification. But such ,a {Majority is i a, majority of the whole number. T<j confine it - to the members presentisto introduce a qualification. We think, therefore, that the tcrrij imports , a majority of all the members. Indtfed, with reference to colonial constitutions, th& phraso • -**labsolutc majority " has made its way-into common discourse, with the mcaring which wo have attached to it. Hence, in order to constitute a •valid election there should be a concurrence of *ten members in favor of one of tho caniUdatcs, 'exclusive of the Speaker, in accordance \witli tho ,23rd section of the Constitution Act ; consequently I'thfcre ha 3 been no valid election. , ~ | y * Being thus of opinion that there has bben no•valid election, we aro called upon* to consider tlie second point. Does the provision in the*. Fourth [section of the Constitution Act apply to Superintendents elected under the Ndw| Provinces Act, jor is it confined to such as aro elbcted nnd^r the ■Imperial Act? Although the New. Provinces Act contains no clause providing! that it shall be read- with the Constitution Act, Mr. Prcridergast, i admits for tho purpose of his "argument tliat it imustrbe so read. And no doubt it is so. 'The ■ two Acts are in part material thqNew Provinces , Act provides that " every province established lunder tliis Act, shall, subject to the provisions of this, Act, he deemed to be a Province under the • Co'nsfitution Act;" and without this, the Constitutibn Act (which contemplated new provinces) contaiAs many links connecting its provisions with any Act or Acts to be afterwards passed for the erection " of new provinces with their Super|intendents. - . \ | The ird Section of the .Constitution Act provides I that " for each of the provinces hereby established, I and for^evcry Province hereafter to be established as hereinafter provided, there shall be a'Supei*iintenden't and a Provincial Council." The 4th -.Section, 'after providing for the election of Snper(intendents, enacts that " every strchTSupcTiiitcri^ ident aliall hold -his office until tile election of his successor." Mr. -Prendergast contends that tlie words, "such Superintendent f" refer only to ..Superintendents elected under the -Imperial -Act jßufc if this be. the case, it caMes with' it' thil consequence — that the duration of the office of the Superintendent for the period £xot £or tlie duration lof the Provincial Councils'- doei not apply to iSuperintendents elected unde?.th( New Provinces! ,'Acfc. Indeed, that Act is silent, both as to the j duration of the new Provincial Councils and thej new Superintendents ; and, therefore, unless the[ ' provision^ of tho ' Constitution A^b app\y to Now i Provinces, New Provincial Councils, and New - ! Superintendents the tenure of bolii Councils and Superintendents is without limitation. Wo must, therefore, resort to the slh clause, or sub-section "of the Ist section of the New Provinces Act, which provides that every new Province " shall be •deemed to be a Province established under the •Constitution Act." This, we think, effectually every provision relating to Provinces 'under the Constitution Act with thcJNe'w Provinces 'Act, and make 3 such provisions] whether they relate to Provincial Councils or Superintendents, apply to Provinces established under the New Provinces Act ; and this, we think is strengthened ,and supported by the "rule which requires statutes i in pari materia ,to be read ; (to' use the language 1 of the Court of King's Bench, in Duck V. Adding"ton, 4T.R., 447), a3 t " one general system of law on the subject." ,We therefore tlunk that tho provision — that \ " every such Superintendent' shall hold- his office until the election of- his successor," applies to all Superintendents, whether ,ele>-ted under, tho Constitution Act .or, under. the. New Provinces A!cfc ; and, therefore, that on the failure of a valid flection of a new Superintendent, J>r. Menzies is still in office.- - It may be well |to add that tho words " within one month," &c, in the 10th Section, are merely directory, and thatif by any accident that period i 3 overrun -without a valid -election, it is still competent to the Provincial Council to proceed to the 'election of a .Superintendent (Rex' v. Leicester Justices, 7 B, and' C 12 ; Rex v. Mayor of -Norwich, 1 B, and Adol 310) where it was held 'that a clause fixing tho time of election was ■ directory, and the Mayor, &c., having neglected to elect within the.time (3 months) prescribed by ? the Act, the Court granted a mandamus to compel them to proceed. \ Bule discharged.