27
A.—4,
only £4,999 19s. llfd. in the Bank, that he is to refuse his certificate —for the principle holds good with one farthing as with a thousand pounds—when a few minutes afterwards there may be ample funds in the Bank? The Provincial Treasurer is liable to a penalty if he issues moneys without a warrant, but the warrant being in his hands it is his protection. Inasmuch as that warrant is the Treasurer's protection for the issue of any moneys pursuant to this Appropriation Act, it ought not to be cancelled. As the Act has been disallowed there may be some reason for asking that he shall be restrained from issuing any more moneys under it, but there is no ground for asking that the warrant be cancelled unless it is shown that he has issued moneys to persons not entitled to receive them. We may assume that between the passing of the Act on the 16th January and its disallowance on the 12th March, the Government, acting on its authority, may have acquired liabilities which should be discharged, and the only authority which the Treasurer had for discharging those liabilities is the warrant which he held. It is stated in the information that a sum of £700 was issued from these moneys. The presumption is that that was issued to persons entitled to receive it, and therefore if the Treasurer has issued the money to persons entitled to receive it, and has obtained the proper vouchers from them, the warrant ought not to be cancelled, for it is his only protection. Moreover, I submit that this is not the warrant of the Treasurer at all, and he has no power to cancel it. The person who should have been brought before the Court is the person who made the warrant, namely, the Superintendent. After declaring that it is not to be a warrant, and that the certificate of the Auditor is to be declared invalid, then they demand that the warrant shall be given up to be cancelled. I submit that there is no necessity for doing that. Besides, although the warrant might not have been a strictly right one at first, still, if acted upon in good faith by the Treasurer, it ought not to be cancelled, for that would place him in the position of having issued moneys without that authority which the law requires, and would render him liable to penalties under section 10 of "The Provincial Audit Act, 1866." There is an allegation that, notwithstanding the disallowance of the Act, the Provincial Treasurer threatens to operate under it. Now, this writ was attested on the 13th March, and the statement in the information is, that the Act was disallowed on the 12th March, so that the period during which such threats could have been made was very short. There is no allegation that these threats of expenditure were made after the disallowance of the Act, therefore it must be assumed that the threats were made before. All that is set out is a letter from the Colonial Secretary on the 28th January, and a reply from the Superintendent on the 2nd February; and although the assurances there given do not appear to have been of a very satisfactory character, still they are not such as could be construed as threats to expend moneys illegally. The Provincial Treasurer objects to the cancellation of the warrant ab initio, without the Superintendent and the Auditor who certified being made parties to the suit, he being only the officer who acted upon what, on the face of it, appeared to be a good warrant. Richmond, J.—Clearly, you cannot successfully contend that the Treasurer could act upon an illegal warrant. He must see to it. It is at his peril that he acts upon the warrant. That, however, does not affect your argument that the Superintendent and Auditor should be here also. There may be something in the argument that we should not declare it to be a bad warrant without having the Superintendent and Auditor present. Mr. Travers.—The only other claim that they make is, that the Act being dissallowed, the Provincial Treasurer be restrained from the further issue of moneys under it. To that there can be no objection. Johnston, J. —This being a general demurrer, you cannot suggest that the judgment of the Court cannot be for the plaintiff on one point only. Mr. Travers.—lf the Court is of opinion that the proceedings are irregular, judgment will be for the defendant; but if it considers them regular, then I cannot resist the application for an injunction which my friend has got already. In point of fact, the basis of these proceedings is the invalidity of the warrant ab initio, and the injunction is merely tacked on to it, because there is no reason for supposing that the Treasurer will act upon an Act after its disallowance. Upon these grounds, I submit that the demurrer should be allowed. Attorney-General.—On the first point, as to whether a relator should be here or not, I submit that it is merely a matter of regularity or irregularity of practice; and if it turn out that the Attorney-General has acted unadvisedly in allowing these proceedings without a relator, that is not a matter which can be taken advantage of by demurrer. The condition of things in New Zealand is so peculiar, that no analogy can be found in the cases in England or elsewhere. There is such a connection between the Provincial and the General Governments, between the revenues of the Provinces and the revenues of the Crown, that it is impossible strictly to apply those reasons which are only applicable in dealing with corporate funds. However right it may be that a relator should be made a party to a suit where the question raised is with respect to the administration of corporate and charitable funds, yet that principle can have no place where we are treating of funds that have so public a nature as the revenues of a Province. I submit that there is no necessity for a relator in this case. (Drury on Equity Pleadings, p. 3; Storey on Pleadings, section 8, p. 7; In re Masters of the Bedford Charity, 2 Swanston, p. 520; Mitford on Pleadings, pp. 23 and 24; Notes.)
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