Auckland Provincial Government Gazette.

255

Superintendent’s Office,
Auckland, 12th June, 1876.

HIS Honour the Superintendent directs the publication of the following Memorandum and Opinion for general information.

VINCENT E. RICE,
For the Provincial Secretary.

Memorandum and Opinion for Sir George Grey, K.C.B., Superintendent.

I am of opinion (a.) that ALL PUBLIC OFFICERS, whether (1.) appointed under the Queen’s Letters Patent, or derivatively therefrom, (2.) appointed under an Act of Parliament, or (3.) acting under, or holding office by, the Common Law, are punishable, and may be indicted, for

1. Neglect of their public duty;
2. Breach of that duty;
3. Misbehaviour in the performance of their public duties;
4. Non-user or abuser of their public authority;
5. Not faithfully discharging their public duties;
6. Improperly exercising a power entrusted to them for the public welfare; and
7. Extortion, bribery, or committing any unlawful act in the exercise of their public functions.

The reasoning on which this is founded is thus put, showing that both dismissal and punishment will follow:—

"In the grant of every office whatsoever, there is this condition implied by common reason, that the grantee ought to execute it diligently and faithfully. For since every office is instituted, not for the sake of the officer, but for the good of some other, nothing can be more just than that he, who either neglects or refuses to answer the end for which his office was ordained, should give way to others who are both willing and able to take care of it." (b.)

In addition to this removal, the Law of England also attaches punishment.

"It is clear that all felonies, and all crimes of an inferior nature (public) ..................... oppressions, misbehaviour by public officers, and all other misdemeanours .................. may be indicted." (c.)

Where an officer neglects a duty incumbent on him either by Common Law or by Statute, he is indictable for his offence, and this, whether he be an officer of the Common Law, or appointed by Act of Parliament. (d.)

And a person holding a public office under the King’s Letters Patent, or derivatively therefrom, has been considered as amenable to the Law for every part of his conduct, and obnoxious to punishment for not faithfully discharging it. (e.)

An Information will be granted and an Indictment will lie against Justices as well for granting as for refusing an Ale licence improperly. (f.)

Public officers may also be indicted for Frauds committed in their official capacities. Thus two persons were indicted for enabling others to pass their accounts with the pay office so as to enable them to defraud the Government. (g.)

It is clear law, therefore, both in England and the Colonies, that a public officer may be indicted for wrong-doing in his official capacity, whether active or passive.

Impeachment.

I have also to advise that no public officer in a Colony can be impeached within the Colony, although he might be so proceeded against before the House of Lords.

Impeachment is a proceeding or prosecution by the House of Commons before the House of Lords, and it involves the exercise of the Highest Judicial Powers of Parliament.

It exists only by virtue of the “Lex et Consuetudo Parliamenti,” which is a law peculiar to, and inherent in, the two Houses of Parliament of the United Kingdom. (h.)

But the Colonial Assemblies have no judicial functions, and therefore cannot proceed by Impeachment. Indeed, such a House only has the power to commit for contempt either by Act of the Imperial Parliament, or by its own laws; but its own laws cannot create in it the highest judicial power. (j.)

No public officer in New Zealand, therefore, can be impeached before any portion of the Colonial Parliament. The only proceeding that can be taken is that of a criminal prosecution either by Information or Indictment, in the ordinary Courts of the Colony.

Breach of a Prohibitory Statute.

I have also to advise that it is criminal to disobey the positive command or prohibition of a Statute.

"For what the Law says shall not be done, it becomes illegal to do, and is therefore the subject-matter of an indictment, without the addition of corrupt motives." (k.) "If a Statute prohibit a matter of public grievance, or command a matter of public convenience, (such as the repairing of highways and the like) all acts or omissions contrary to the prohibition or command of the Statute being Misdemeanours at Common Law, are punishable by Indictment, if the Statute specify no other mode of proceeding." (l.)

Nor is this the case merely in relation to the direct wording of a Statute. Where the King in Council is enabled by a Statute to make orders relating to the conduct of matters, disobedience to those orders, when duly made, is a Misdemeanour at Common Law. In the Case quoted below (m.), the judgments of the different Judges are very strong upon the point.

W. L. REES.

Auckland, June 10th, 1876.

(a) Hawkins, Pleas of the Crown, 8th ed., Offences by Public Officers, p. 412. Russell on Crime, vol. 1, p. 80.

(b) Hawkins, ibid.

(c) Russell, vol. 1, p. 80.

(d) Russell, vol. 1, p. 200; Part 2, c. 14. Reg. v. Wyatt, 1 Salk., p. 350, 6 Mod. Rep. p. 96.

(e) Rex v. Bembridge, Mich. Term. Geo. 3, quoted 1 Salk., pp. 380, 381.

(f) Rex v. Holland, 1 Term. Rep., p. 692. Rex v. Filewood and another; Rex v. Sainsbury and another, 4 Term. Rep., p. 451.

(g) Russell, vol. 1, p. 207; Rex v. Bembridge and Powell, quoted 6 East’s Rep., p. 126.

(h) Doyle v. Falconer, Privy Council Appeals, L.R. vol. 1, p. 339.

(j) Hem. Kielly v. Carson, 4 Moore’s P. C. Cases, p. 63. Fenton v. Hampton, 11 Moore’s P. C. Cases, p. 347. The Speaker of the Legislative Assembly of Victoria v. Glass, Law Rep. 3 P.C. Appeals, p. 560.

(k) Rex v. Sainsbury and another, 4 Term. Rep., p. 451.

(l) 2 Hawkins, Pleas of the Crown, c. 25, s. 4. 2 Institutes 163, and Cases quoted in Hawkins. Rex v. Davis, Sayer’s Rep., p. 163. Rex v. Sainsbury, 4 T.R., p. 451.

(m) Rex v. Harris, 4 T.R., p. 202; Lord Kenyon C.J., Ashurst J., Bullen J., Grose J.