AUCKLAND PROVINCIAL GOVERNMENT GAZETTE.

Published by Authority.

Vol. IV.] AUCKLAND, MONDAY, MAY 5, 1856. [No. 11.

THE following opinions of the Provincial Law Officer are published for general information.

REPORT UPON ACTS OF THE PROVINCIAL LEGISLATURE.

Princes Street, Auckland,
September 21, 1855.

SIR,—In reply to your Honor’s communication of the 1st ultimo, requesting my opinion as to whether any and what alterations might be required in the Acts of the Local Legislature of this Province, passed during its first and second sessions, I have the honor to transmit the following Report.

1. I am of opinion that all those Acts are void. The late Governor of the Colony, Sir George Grey, took his departure hence for England, on or about the 1st day of January, 1854, upon which, by virtue of certain provisions contained in the Commission of Governor, previously issued to him by Her Majesty, the office of Administrator of the Government devolved upon the Chief Officer in command of the Military forces in these Islands; and that officer was Colonel Wynyard, who then held the civil and elective office of Superintendent of this Province. The Provincial Council, which was then holding its first session, had been convened about two months previously, by Colonel Wynyard, in his capacity of Superintendent; but all the Bills which it passed, both in that and the subsequent session, were assented to by Colonel Wynyard as Superintendent, after he had become and taken upon himself the duties of Administrator.

By virtue of the provisions just mentioned and other provisions contained in the Constitution Act, the 15 and 16 Vict. c. 72, all the powers and authorities, both Executive and Legislative, conferred on the late Governor, vested on his departure in the Administrator.

All public offices in the Colony, whether elective or non-elective, are subordinate to that of the Governor, just as similar offices in England are subordinate to that of the Queen. Although the Governor cannot, at his pleasure, suspend or dismiss an elective officer, such as the Superintendent of a Province, or the member of a Council, yet he may institute proceedings at law (and it is his duty to do so) against any such officer, for misuser or non-user of his office, an offence for which elective officers in England, such as the Coroner of a county, or the member of a corporation, are subject to removal, at the suit of Her Majesty.

Independent of this consideration, the office of Superintendent of any Province in the Colony is, under the Constitution Act, subordinate to that of the Governor. Thus the Governor may, within three months after the election of a Superintendent, disallow such election (s. 4); or he may accept his resignation at any time during his tenure of office (Ibid); or he may issue instructions to him for his guidance in assenting to bills or in withholding such assent (s. 31); or if the power of removing the Superintendent of a Province, at the request of the majority of the Council thereof conferred on Her Majesty (s. 4), and which she is authorized to delegate to the Governor (s. 79), has been so delegated; he might remove him from his office on receiving an address to that effect, from the majority of such Council.

Where one office is subordinate to another, they are said to be incompatible; and they cannot, according to a principle of common law, be held, at the one time, by the same person: and the rule holds in the case of elective officers, as well as in that of those that are non-elective. And where offices are incompatible, the one which the party first held is impliedly surrendered or vacated, by his acceptance of the other. (Chitty, Pro. 83; 2 Term, Rep. 87.) Thus if a person elected coronor should be subsequently appointed sheriff or