Auckland Provincial Government Gazette.

159

authority of the Courts, the clear and lawful rights of this Province to a small fraction of its revenues, whatever these may be, ought now immediately to be settled by the Courts, that our true position may be ascertained. I will therefore direct that the necessary application should be made to the Courts.

To a letter forwarded by post I have sent you copy of legal opinion on question you raise, with my own reasons for differing in opinion from yourself and the Solicitor-General.

G. Grey.

(6c.)
Superintendent’s Office,
Auckland, 3rd March, 1876.

Sir,—

Adverting to your telegram of the 23rd ultimo, I have the honour to call your attention to the following points connected therewith.

Towards the close of the last session an arrangement was made between the Colonial Treasurer and the Provincial Treasurer of this Province that certain amounts should be paid to the Provincial Government to enable it to conduct the public business.

A part of that arrangement was that during the current year this Province should continue to receive from the Colonial Treasury the balance of capitation allowance at the same rate as formerly, which rate was estimated at about £1,000 per month.

I spoke to the Colonial Treasurer upon this point, and showed him the estimate of revenue which the Provincial Treasurer had placed in my hands; and the impression left upon my mind was that there was an acquiescence on his part in the understanding between the Provincial Treasurer and himself, which was also the understanding upon which I acted during the remainder of the session when financial matters were under discussion.

These facts are admitted in your telegram of the 23rd instant, where you state “that neither the ‘Colonial Treasurer’ nor the ‘Provincial Treasurer’ at ‘the time of this arrangement took into account the’ stoppages for railway deficiency, and that the ‘stoppage of three thousand and fourteen pounds’ on account of the Mercer railway must therefore ‘have conflicted with the expectations of the’ Provincial Treasurer.’

When the matter thus stood towards the close of the last session, neither the Provincial Treasurer nor myself received any warning from the Colonial Treasurer or from any other member of the Government that it was intended to include in the Immigration and Public Works Act of last session clauses which would take from the Province of Auckland funds which we distinctly understood were to be left at our disposal. Under these circumstances the Provincial Treasurer left Wellington for Auckland before the session closed.

When the Immigration and Public Works Act of 1875 was introduced into the Assembly, the fifteenth section of it must have been understood in its plain meaning, which left the pecuniary interests of this Province untouched. I should have contended against that clause to the last, had I thought the intention was to set aside the agreement between the Colonial and Provincial Treasurers; and I believe that if a debate had taken place the Legislature would, upon the full explanation of the circumstances of the case, have seen that full justice had been done to the interests of this Province by the terms of the arrangement made with it being carried out: or that, failing this, the Act would not have passed the three branches of the Legislature.

You now contend, supported apparently by the opinion of the Solicitor-General, that the Courts of this country will, when the question is submitted to them, decide two things: First, that the Legislature did not intend to pass the law in the form in which it now stands. Secondly, that the Legislature would have made the law in the form which suits the policy and convenience of your Government, and that, therefore, the Courts will assume to themselves the power of making such a law for the General Assembly. This is what the Colonial Government is now doing, without having first obtained the authority of the Courts for its action.

Some obvious remarks suggest themselves upon this subject:

You in fact affirm that it is not the duty of the Judges to confine themselves to the words of the Legislature, nothing adding thereto, nothing diminishing therefrom; but that they are indeed bound not to take an Act of the Assembly as the Legislature has made it, but to supply a casus omissus, and thus to make laws.

By such reasoning the Judges are not required to declare the law lex scripta est, and to follow it and obey it, but to take for their guidance mere policy and convenience, points on which men naturally differ, for the policy or convenience of one party or time may differ from that of another, and the law should not be subject to such fluctuations. It clearly rests, under such circumstances, with the Legislature, and not with the Judges to make an alteration in the law, and the welfare and interests of this Province require that this course should be pursued.

The Judges can take from it, but can give nothing to it. The Legislature, if taking away on the one hand, can on the other hand make compensation for any wrong which it may do. It moreover appears that, if there is any doubt as to the construction of the 15th clause of the Act referred to, it would be right to adopt the construction which is most favourable to the Province of Auckland, because the General Government, in entering into a financial arrangement with the Government of that Province which was then almost wholly at its mercy, ought to have taken care to express distinctly what amounts the Province was to receive, as it is contended it did; and no change in such arrangement should be attempted by the General Government on the grounds of an alleged enactment of the General Assembly, unless it was manifestly clear that the Assembly had full warning of the arrangement that subsisted; and had then in the most plain and unmistakable language declared that it set that arrangement aside, for the Provincial Government of Auckland is in no respect answerable for any mistake which may have occurred.

If the General Government intended to have gone back from the arrangement concluded with the Province, it did not impart that intention to the Provincial Authorities or to the General Assembly. It drew its own Act and submitted it to the Assembly.

In truth, the change now attempted to be made amounts to a tax of about £12,000 a-year, to be imposed upon the Province of Auckland as a whole, in breach of a special arrangement made by the General Government to the contrary, whilst even without that arrangement no general rule of constitutional law is better established than that no tax should be considered to be imposed without a plain and unmistakable declaration of the intent of the Legislature to impose it.

I enclose a copy of the legal opinion which I have taken upon this subject.

I have, &c.,
G. Grey.

The Hon. Sir Julius Vogel, K.C.M.G., M.G.A.,
Wellington.