A.—4,

30

said, it is entitled to legislate, shall, so far as the same is repugnant to or inconsistent with any Act passed by the General Assembly, be null and void." I submit that the General Assembly may pass any Act upon any subject, and any part of the legislation of a Province which is repugnant to that Act is done away with. On these various grounds, the absence of specification of the fund out of which the moneys are to come, of the time over which the expenditure is to extend, and of provisions as to the moneys being issued under warrant by the Superintendents, I ask the Court to say that this was not an Appropriation Act, and was not intended by the Provincial Council to be one. If it was an Appropriation Act, then I ask the Court to say that it was not such an one as the Auditor could issue his certificate under. Richmond, J.—Unless there is some period fixed, and some fund specified out of which the moneys are to come, it is impossible to see how there can be any check over the Provincial Executive. Attorney-General.—Exactly. The Superintendent may say, " We have got this money voted, but we will not expend it this year or next, but at any time we choose." ,£50,000 was tied up for an indefinite period, if this be an appropriation of the money, and, had not the Act been disallowed, the ordinary services of the Province could not have been met. Until the Act was disallowed, the Auditor could not certify to the ordinary warrants because all this money was tied up. The intention of all legislative bodies is to keep control over the Executive by making them come year by year for appropriation. That principle is acknowledged even in England, in the case of public works, the expenditure on which must extend over a period of years. (Fortifications Provisional Expenses Act, 1862, c. 78.) I now submit that the warrant itself is bad for uncertainty, and as not being a warrant within the meaning of the law. The only officer who is responsible for the issue of all moneys is the Superintendent, who represents the Province. By the Constitution Act it is provided that "no such money shall be issued except by warrants to be granted by the Superintendent." The words here are different from those used with regard to the General Government. In the case of Provincial expenditure, it is to be "by " warrants to be granted by the Superintendent; and in the case of General expenditure, it is to be "in pursuance of" warrants under the hand of the Governor. In the case of the Superintendent, his warrant is the direct authority for the issue of the money, making him the direct controller of that issue. By virtue of the Constitution Acts the moneys are to be issued " by " warrants, and by "The Provincial Audit Act, 1866," they are to be issued " in pursuance of" warrants; so that they are to be issued both "by" and "in pursuance of" warrants. Where the Legislature provides that moneys are to be issued "in pursuance of" warrants, those warrants must indicate to the person who is to act under them, the services in respect of which the moneys are to be issued, and the parties to whom they are to be paid, otherwise the whole object of the warrant, as may be seen at once in this case, is nullified. What is the use of this warrant ? The Appropriation Act itself is just as good as the warrant which merely follows it. "The Provincial Audit Act, 1866," is a combination of "The Provincial Audit Act, 1861," and " The Controller's Act, 1865." " The Audit Act, 1861," had virtually no control in it. The only control was that the Auditor, before certifying a warrant, was to see that the moneys had been appropriated. There was a control so far, but nothing like that under the present Act. Section 18 of " The Audit Act, 1861," says, " Every warrant for the issue of money from the Treasury of any Province"—there is the first difference; under the Act of 1866, the moneys are necessarily in a Bank, at the Provincial Account, —" shall, before the same is signed by the Superintendent, be laid before the Auditor or Deputy-Auditor, who shall, in writing on the face thereof, signed by him, certify that the amount directed to be paid thereby has been appropriated by Act of Council for the service therein specified, or has not been so appropriated, or is in excess, and if so, how much in excess, of some appropriation for the specified service." Section 11 of " The Audit Act, 1866," says that the Auditor " shall not certify the same unless the sums therein mentioned are then legally available for the services therein specified." The difference in the language of the two Acts is very material. Under the former Act the Auditor was to certify that the moneys were appropriated, were not appropriated, or were in excess of appropriation; but under the present Act he is to certify that the moneys are " then " —at the time he certifies—legally available for the services. Under section 12 of the Act of 1866, if there has been no appropriation, or an excess of appropriation, the warrant is to be accompanied by a special order by the Superintendent, and the Auditor is to certify that there are moneys legally available, although there is no appropriation, because the Superintendent has done that which, in the eye of the law, is equivalent to appropriation, namely, given his special order. I submit that if the Court, in construing Acts of Parliament, finds that one Act repeals another dealing with a similar subject and uses different language, it must be supposed primd facie that there was some reason for the change. If the later Act means that the Auditor is only to see that the moneys, have been appropriated, why should the words " then legally available "be inserted. There are two grounds why moneys might not be legally available: —First, because there are none available, and secondly, because they are not available for the services, and there is no reason for saying that the certificate under section 12 is different from that under section 11, as the special orders which the Superintendent is entitled by law to issue are equivalent to appropriation.