29

A.—4

construction of these public works, but merely to give the Superintendent authority to construct certain works. There may be given authority to construct works, and yet an absence of provision for the construction. Although there may be language in the Ordinance leading apparently to an opposite conclusion, still I submit that the defect of provisions which are always made by the Provincial and General Legislatures, and which are in accordance with the terms of the Constitution Act in relation to these matters, shows that the Provincial Council did not intend to appropriate moneys by this Ordinance. The long title of the Ordinance is, "An Act to authorize the construction of certain Bridges, Roads, and other Works in the Province of Wellington; " and the 3rd clause says, " The Superintendent is hereby authorized and empowered to expend any sum or sums not exceeding £50,500 in the construction of the several works set forth in the Second Schedule." There is no specification of the funds out of which these works are to be constructed, and there is no time stated over which the expenditure is to extend. It may be a month, a year, two years, or any time. The Ordinance does not say whether the money is to come out of ordinary revenues or revenues raised by loan, or, as my friend suggests, the gift of a private individual. If this was not an appropriation of Provincial revenue, it was no authority for the Provincial Auditor to issue his certificate. The Superintendent's warrant and the Auditor's certificate are for the issue of moneys from the Provincial revenues. It is true that the 4th clause, which contains the words " moneys heretofore or hereby or hereafter appropriated by the Provincial Council," apparently shows that the Provincial Council thought they were appropriating money; but I submit that the Constitution Act makes it necessary that the clause which is almost always inserted in Appropriation Acts, should have been put into this one. If the Ordinance authorizes the issue of moneys in non-compliance with the Constitution Act, which provides that they shall be issued and made issuablc by warrants of the Superintendent, then it is invalid. If, on the other hand, it is to be read as primd facie intending to appropriate moneys, then I say that the absence of the clause required by the Constitution Act, and inserted in the regular Appropriation Act of the same Province of the same year, and in almost all other Appropriation Acts, shows that it was not intended to be an appropriation. The words " out of the Provincial revenues " should have been inserted. The other difficulty with respect to the Ordinance is that no period has been fixed during which the expenditure is to be made. That every appropriation should be for a particular period is evident from the Provincial Audit Acts. Looking at the Provincial Audit Acts, it is evident that Provincial Councils cannot pass permanent appropriations. They must fix a time during which the work shall be done. Section 12 of "The Provincial Audit Act, 1866," provides for the issue, by the Superintendent, of special orders to the extent of one-twentieth of the ordinary Provincial revenues of the preceding year. Section 15 provides that all moneys not expended during the financial period for which they were appropriated, are to be carried to the credit of the revenue of the following period. Therefore, unless appropriations are for a fixed period, it will be impossible to ascertain the amount of special orders which the Superintendent can issue, and the legislation will nullify that of the Provincial Audit Act, which says that if moneys are not applied within the period for which they are appropriated, they are to fall back into the Provincial revenue. The fair inference from these various facts is, that the Provincial Legislature did not intend by this Ordinance to appropriate moneys, but that they would do so by other legislation. It is quite competent for the General Assembly to provide that certain moneys shall be subject to appropriation by Provincial Councils, but shall not go into the Provincial account; therefore the Auditor had no ground for concluding from this Ordinance that the moneys intended to be expended were Provincial revenues from the public account; for all he could tell from this Ordinance, they were moneys to be provided in some other way. That the Wellington Provincial Council itself was aware that there was a doubt as to its being able to appropriate moneys for more than a year, is shown by " The Wellington College Vote in Aid Act, 1873." The long title of that Act is, "An Act to authorize the appropriation for certain purposes of the Annual Sum of £1,000 for Four Years, out of the Provincial Revenue of the Province of Wellington." The preamble consists of resolutions passed by the Provincial Council, one of which is as follows: —" That with a view to the removal of any doubt which exists as to the power of a Provincial Legislature making an appropriation beyond the period of one year, His Honor be further requested to cause to be proposed to the General Assembly a Bill authorizing and requiring him to pay such Provincial appropriation to the Governors of the Wellington College." Of course it may well be that although the Provincial Legislature had a doubt, this Court may come to the conclusion that there is no doubt. Johnston, J.—Might it not be said that if this indicates the maximum of time for which a Provincial Legislature can make an appropriation of the sort, the absence of the language shows that the Ordinance is good for one year at all events ? Attorney-General.—No doubt; but I submit that the other interpretation is entitled to its weight. Richmond, J.—The question is, whether or not the Audit Act of 1866 can impose upon the powers of appropriation by Provincial Legislatures under the Constitution Act, any restriction. Attorxey-Gexeral.—The latter part of section 53 of the Constitution Act provides that "any law or ordinance made or ordained by any Provincial Council, in pursuance of the authority hereby conferred upon it, and on any subject whereon, under such authority as afore-