OPINION.

The Law Officer for the Province of Auckland is requested to advise whether the Superintendent of the Province could have tested the legality of the body styling itself "The Auckland City Council," by suing out of the Supreme Court a writ of quo warranto against such body, or by filing a quo warranto information against it, in that Court.

The British Constitution has vested in the Sovereign for the time being, the whole executive power of the laws. It being, however, impossible for the Sovereign to execute in person a trust so extensive, courts of justice have been erected, from time to time, and public law-officers have been appointed to sue or prosecute therein, on behalf of the King or Queen regnant, all persons charged with the commission of public offences. But such courts and officers cannot legally administer or enforce the laws without royal authority. To attempt to do so, would be a usurpation of the Sovereign’s prerogative, which no one is justified in doing, how conducive soever he or others may deem it to the public welfare.

"All executive power, all enforcement of the laws in being, is derived mediately or immediately, from the Crown. Whatever the law requires to be done, can only be done ultimately by royal authority."—Wooddeson i., 79.

"Though the Constitution of the Kingdom has entrusted him with the whole executive power of the laws, it is impossible as well as improper, that he should personally carry into execution this great and extensive trust: it is consequently necessary that courts should be erected to assist him in executing this power, and equally necessary that if erected, they should be erected by his authority."—Bl. i., 311.

"The King of England is therefore not only the chief, but properly the sole magistrate of the nation: all others acting by commission from, and in due subordination to him."—Bl. i., 292.

For any person to usurp a public office, or for any number of persons to usurp a public franchise, such as that of being a municipal corporation, is a misdemeanour at common law.

Against persons so offending, her Majesty’s Attorney-General, or some other such public law-officer, but no other person, may sue out a writ of quo warranto, or file an information in the nature of that writ. This latter is now the usual mode of procedure in such cases.

"A writ of quo warranto is in the nature of a writ of right for the Queen against him who claims or usurps any office, franchise, or liberty."—Bl. iii., 313-14.

"The judgment on a writ of quo warranto (being in the nature of a writ of right) is final and conclusive, even against the Crown, which, together with the length of its process, probably occasioned that disuse into which it is now fallen, and introduced a more modern method of prosecution, by information filed in the Court of King’s Bench by the Attorney-General in the nature of a writ of quo warranto, wherein the process is speedier and the judgment not quite so decisive. This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the Crown."—Ibid.

To remedy the evils resulting to the peace, order, and good government of cities, boroughs, and towns corporate in England and Wales, from the intrusion of persons into public offices in and connected with such places, the 9 Ann, c. 20, was passed. It empowers the proper officer in the Queen’s Bench to exhibit, with the leave of the Court, a quo warranto information, at the relation of any person desiring to prosecute the same against the party so intruding. But in every case of the kind, the right of the alleged intruder to hold the office, and not the legality of the corporation itself, can be tried or called into question.

"No information upon this statute can be had against the corporation itself as a body.—Rex. v., Corporation of Carmarthen, 2 Burr, 869."—Chitty’s Statutes, i., 207.

"This Act only extends to corporation offices."—Ibid.

"The Court will not grant a quo warranto information against an officer of a corporation established by charter pursuant to the 7th Wm. IV., and 1 Vic. c. 78, if it appear that the object in prosecuting such information is to try the legality of the charter."—Regina v. Taylor, 11 Adolphus and Ellis, 949.—Harr. Dig. iii., 5779.

None but her Majesty’s Attorney-General, or some other such public law officer, can file a quo warranto information against a number of persons acting as a corporation; no private officer or person can do it.

"An information in the nature of a quo warranto against persons for claiming to act as a corporation must be filed by and in the name of the Attorney-General."—Rex v. Ogden, 10 B. and C. 230.—Harr. Dig. iii., 5786.

"A quo warranto information will not lie, at the instance of a private individual, against persons for claiming to act as a corporation."—Law and Practice of the Queen’s Bench, by G. and S., 99.

Her Majesty’s Charter of the 23rd December, 1846, conferred nearly all her executive power pertaining to these Islands upon the Governors or Lieutenant-Governors (as the case might be) of the Provinces of New Ulster and New Munster, respectively. But a very small portion of it vested in the Governor-in-Chief. The former were empowered to appoint and constitute, within their respective Provinces, all judges and other officers necessary for the administration of justice, and the enforcement of the law made or to be made for the government.