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The Constitution Act, the 15 and 16 Vict., c. 72, created and constituted our Local Legislature, and defined its powers and jurisdiction. These extend to the making of laws for the good government of the Province, provided that such be not repugnant to the law of England; but that is their utmost limit: they extend no further.

"If a statute made use of a word the meaning of which is well known at the Common Law, the word shall be understood in the same sense in which it was understood at the Common Law."

The two words Law and Institution have different meanings well known in English jurisprudence. To erect or establish an institution is something quite distinct from the making of a law, and ought no more to be confounded with it than is the creating of a new title or dignity.

In the Charters of the Old British Colonies in North America, and in our statutes, the distinction between the two words is recognised and maintained.

Thus, the 10 Geo. IV., c. 22, contains the following provision touching the Government of Western Australia, viz.:—

"It shall be lawful for His Majesty by any order made with the advice of his Privy Council, 'to authorise and empower any three or more persons resident and being within the said Settlement, to make, ordain, and establish all such Laws, Institutions, and Ordinances, and to constitute such Courts and Officers as may be necessary for the peace, order, and good government of his Majesty’s subjects, and others within the said Settlement.'"

And in the 4 and 5 Wm. IV., c. 95, under which South Australia was 'erected' into a colony, the same distinction obtains. His late Majesty was empowered by that Act to authorise one or more persons 'to make, ordain, and establish all such Laws, Institutions, or Ordinances, and to constitute such Courts and appoint such Officers,' as might be necessary for the good government of the Privy Council.

The 9th section of the 5 and 6 Vict. c 76 (the first Constitution Act of New South Wales) empowers the Governor and Legislative Council of that Colony to make laws for the good Government thereof; but that the legislative powers thereby conferred did not include or extend to the establishing of municipal or other institutions, may be inferred from a subsequent provision contained in section 41, viz.:—'And whereas it is expedient that provision be made for the local government of the different parts of the said Colony, be it enacted that it shall be lawful for the Governor, by letters patent under the great seal of the Colony of New South Wales, to incorporate the inhabitants of every county within the said Colony, &c.'

The local legislature of this Province not being empowered to erect or establish institutions, it follows that the municipal body called the City Council created by the two Acts above mentioned, does not derive its origin from lawful authority, and that it is therefore illegal.

It is a maxim or axiom of English law, that the donee of a power cannot delegate the same, unless expressly authorized to do so by the donor. This inflexible rule is as applicable to public bodies as to private individuals—to Her Majesty as to the humblest of her subjects.

Thus in the two Acts mentioned, relating to Western and Southern Australia, his late Majesty was empowered to make and establish laws and institutions for and in those settlements, or to delegate such powers to one or more persons resident therein; and in the Constitution Act of this Colony, Her Majesty is expressly empowered to delegate to the Governor thereof certain powers conferred upon her by such Act.

The local legislature of this Province is not empowered to delegate any portion of its legislative functions. It has therefore clearly exceeded the powers conferred upon it, in constituting the City Council, and empowering it to levy rates and assessments, and impose penalties in a certain portion of the Province containing more than two-thirds of our population.

2. I am of opinion that the City Council would be an illegal body, even if the phrase 'to make laws' included in its ordinary acceptation, the establishing of institutions.

The legislative power of our local legislature is conferred on it by the 19th section of the Constitution Act; but a subsequent one (the 70th) confers on Her Majesty, in express terms, the power of erecting municipal corporations within the Colony.

It is a rule of law that if two parts of a statute conflict, or are repugnant, to each other, the latter part shall stand and be a repeal of the former part, so far as it is repugnant thereto, because it was last agreed to by the makers of the statute.

Applying this rule in the case assumed, it would follow that our local legislature could not legally establish within any part of the Province, a municipal body.

3. I am of opinion that no valid election of City Councillors could take place under the provisions of the local acts referred to, even though no municipal corporation had been established for the district of Auckland under the 2nd section of the Imperial Act, the 9 and 10 Vict. c. 103, and even though the power of establishing such Corporations within the Province had been conferred on our local legislature instead of on Her Majesty.

In constituting a statute or ordinance, the intent of its makers is to be collected and ascertained from the instrument itself, and can never be supplied by arbitrary conjecture.

From a careful perusal of the Auckland City Council Act, it appears that two bodies politic, wholly distinct, and having no relation whatever to each other, were thereby created—the one a corporation, and the other...