[THE NEW ZEALAND GAZETTE]

80

chosen verderor, the former office would become ipso facto vacant.

As Colonel Wynyard, on becoming Administra-
tor, ceased to be Superintendent, according to the principle laid down; we can regard the Acts in ques-
tion as the Acts of the Provincial Council only:
and since that body, except conjointly with the Superintendent of the Province legally holding
such office, has no legislative functions, those Acts can have no binding force.

2. During the two sessions, 26 Acts were passed, whereof nine are such as, in my opinion, the Pro-
   vincial Legislature has no power to enact; while three others contain certain provisions that are
   equally beyond its power and jurisdiction.

Of the nine, the following six purport to con-
stitute corporations or councils and to regulate their powers, viz.; The Auckland City Council Act;
The Auckland City Council Amendment Act;
The Auckland Harbour Act; The Auckland Har-
bour Land Act; The Auckland Steam Navigation
Company’s Act; and, The Auckland Local Steam Navigation Company’s Act.

Corporations whether instituted for the good
government of towns or cities, or of companies engaged in trade or commerce, or in other pursuits,
have, as incident to them, not only the legislative power of making laws and ordinances, but also the
executive power of compelling persons within their jurisdiction to observe them when made.

The powers of the Provincial Legislature are very limited, and (with one solitary exception) of
a nature purely legislative. It may enact laws,
but it cannot appoint judges to administer them,
nor officers to enforce their observance. That can be done by the Governor only, to whom, by
her Royal Commission, Her Majesty has delegated her executive power within these Islands.

On this ground alone, the Provincial Legisla-
ture could not, even if authorized to delegate its
powers, create a municipal or other corporation;
since it could not confer upon the persons inten-
ted to be incorporated, nor convey to them, that which it does not possess itself, and which is es-
sential to the existence of a body politic,—the ex-
ectutive power of enforcing obedience to their own ordinances. But hardly any point of law is bet-
ter established than this,—that no corporation can be legally instituted, save by or under the au-
thority of the Queen, or the Parliament. The
Corporation of the City of London has powers much more extensive than those of the Provincial
Legislature; yet it was adjudged, after solemn de-
bate, that that body could not incorporate a guild or fraternity within the City, although all its
rights, privileges, franchises, and customs had been confirmed by Act of Parliament.

"And this body politic, or incorporate, may
commence and be established three manner of ways, viz., by prescription, by letters patent, or
by Act of Parliament." (Co. Lit. 1, 183.)

"A corporation can only be created by Act of
Parliament, or the King’s charter; for though
some corporations are said to be by prescription, yet
such prescription always supposes an original grant
from the Crown, which being lost or worn out by
time, yet having run out into a prescription,
still continues to unite them." (Ibid.)

"The exclusive right of the Crown to insti-
tute corporations, and the necessity for its express
or implied consent to their existence, is un-
doubted; and was, so far back as the reign of Ed-
ward III. allowed to have been long settled as
clear law." (Chitty on the Prerogative, 123.)

"The King, by virtue of his prerogative, is the
only person that can erect, either an ecclesias-
tical or lay corporation." (Bacon II., 253.)

"The Pope could not have founded or incorpo-
rated a college, &c., here; but it ought to have
been done by the king himself." (Ibid.)

There are two classes of corporations: 1, those which the Queen can institute by her preroga-
tive: 2, those possessing greater powers, such as that of having courts not proceeding according to the forms of the common law, and which cannot
be instituted but by or under an Act of Parlia-
ment.

Her Majesty is empowered by the Constitution Act (Sections 70, 79) to establish within the Co-
lony, or, to delegate to the Governor the power
of establishing, municipal corporations of the lat-
ter class; which power has been so delegated.
(Vide Sect. 23 of Sir John Pakington’s Despatch
of July 16, 1852.)

According to the 62nd Section of the Royal In-
structions which accompanied Her Majesty’s Let-
ters Patent of November 16, 1840, such Instruc-
tions are to be understood as addressed to the
Governor or Administrator of the Colony, for the
time being, although addressed in terms to Cap-
tain Hobson, the then Governor. They are recited
in the Constitution Act, and are repealed thereby,
only so far as they may interfere with the opera-
tions thereof. The 42nd Section is of the tenor
following.

"And we do further authorize and require you,
in and by any such letters patent as aforesaid, to
grant to our loving subjects resident within any such
county, hundred, or parish, all such franchises, immunities,
rights, and privileges whatever as, consistently
with the circumstances, situation, laws, and
usages of our Colony of New Zealand, may be pro-
perly granted to such our loving subjects in that
behalf; provided that such franchises, immuni-
ties, rights, and privileges shall, as far as the cir-
stances of the said Colony may admit, be such
as are and of right may be claimed, held, enjoyed,
and exercised by our subjects inhabiting and resi-
ding in any county, hundred, or parish in that
part of our United Kingdom of Great Britain
and Ireland called England, and not otherwise."

All franchises are derived from the King; and
to be a corporation is a franchise. (Chitty Pre.
119.)

By virtue of the power of instituting municipal
corporations conferred on the Queen, and dele-
gated by Her Majesty, as just mentioned, to the
Governor; and also, by virtue of the powers con-
ferred upon him by this Section of the Royal In-
structions, His Excellency has full power and
authority to institute municipal corporations of
either class, and to incorporate companies for the
purposes of trade, commerce, science, or other
matters, when and wheresoever within the Colony,
it may please him to do so. It is therefore to the
Governor of the Colony who has the power of in-
stituting corporations, and not to the Provincial
Legislatures which have it not, that communities
or companies wishing to be incorporated, ought to
apply.

The observations which I shall make respecting
officers, will apply with equal force to Councils;
since a council may be regarded as a number of
persons appointed to discharge the duties of one
office.

With respect to the land alleged to have been
conveyed, by grant, to the Auckland Harbour
Commissioners, and of which the Auckland Har-
bour Land Act purports to regulate the disposal,
I would observe that if that body were a legally-
constituted corporation, and if no other excep-
tions could be taken to the alleged transfer, the
fact that it did not obtain a royal license author-
izing it to acquire and hold such land, would be
fatal to the validity of its title.

"All corporations must have an express and
positive license from the King to take in mort-
main, to enable them to purchase and hold any
real estate." (Wooddeson I. 494.)

Land is said to be purchased when the title
thereto vests in a man or body politic by his or
its own act and agreement. A purchase, as that