31

A.—4,

Those special orders are limited in amount to one-twentieth of the ordinary Provincial revenue of the preceding financial year, and must specify the services for which they are issued. As a matter of fact, there were no moneys available for these services at the time the warrant was presented to the Auditor for his certificate. There were only £185 at the credit of the Provincial Account, and the Superintendent had only power to raise about £8,600 more. We may look at "The Provincial Audit Act, 1869," to see how the General Assembly has treated these words "legally available." "The Consolidation of Loans Act, 1867," forbad Provinces to borrow, and there appears to have been a doubt as to whether that forbad the right to obtain an overdraft at a Bank. It seems to have been considered that the want of power to obtain temporary loans from the Banks, prevented there being moneys legally available within the meaning of "The Audit Act, 1866." There might be money coming in and expected to come in, yet if there was no money to the credit of the account, it could not be considered that there was any legally available. It was therefore enacted by " The Audit Act, 1869," that Superintendents might borrow moneys under certain conditions in order that those moneys might be at their disposal. The recital of that Act recites section 11 of "The Audit Act, I860," and concludes by saying " whereas the irregular and uncertain intervals at which the revenue of Provinces is received, render overdrafts and temporary loans sometimes necessary—necessary because "The Audit Act, 1866," caused this difficulty in the administration of the affairs of Provinces, that the Auditor had to certify that the money was " legally available " at the time of the presentation of the warrant. The wording of the sth section of the Act of 1869 is of importance, for if the money was merely raised by ordinary overdraft at the Bank, the proceeds would not be passed over to the credit side of the account; but the Act provides that the proceeds of the overdraft or Deficiency Bill shall be paid into the Provincial Account in order to allow the Auditor to know that the power had been exercised. The Legislature intended that the moneys borrowed should be, within the meaning of the Provincial Audit Act, issuable, which they would not be unless they were at the Provincial Account. Richmond, J.—Then, in order to know whether sums are legally available or not, the Auditor should have the entire balance sheet before him on each occasion that a warrant is presented to him. Attorney-General.—Certainly. Supposing a warrant was issued for the payment of money to A. B. for a contract, and the Superintendent were to go to the Auditor and say, " I do not intend to pay this money at present, but I ask you now to certify another warrant for other items of appropriation." Would the Auditor be justified, having once certified to a warrant, in being a party to saying to the Superintendent, " You may issue the money to somebody else," without having cancelled the first warrant? Would not A. B. have a right to go to the Supreme Court for a mandamus, and insist on the issue of the money to him ? It has been argued that " The Audit Act, 1866," was never intended to be a control. I submit that, upon the very terms of its provisions, it is a control. The long title of the Act is " An Act to control the issue of Provincial Revenues and to provide for the Audit of the Accounts of the Provincial Governments." Sections 11 and 12 are taken from "The Controller's Act, 1865." Section 8 follows section Bof the Controller's Act very closely, and section 9in both Acts is the same. Section 10 of the Controller's Act is, however, very different from the corresponding section of the Audit Act, because the systems in force in the General and Provincial Governments are different. The arguments I have been addressing to the Court are rather addressed to the invalidity of the certificate than to the badness of the warrant, though of course they go to the badness of the warrant. The attention of the Court has already been fully drawn to the wording of the Constitution Act, and I shall now call attention to the wording of the Audit Act in connection with this warrant. The 10th paragraph of the information states that at the time of the presentation of this warrant for the Auditor's certificate, there were only £185 12s. 6d. at the Provincial Account, and that none of the works or services mentioned in the warrant had been performed or executed, and no liabilities had been incurred in respect thereof. That being the condition of things, the Superintendent presents this document to the Auditor as a warrant within the meaning of the Constitution Act; for there is no other warrant referred to or provided for. It is addressed to Henry Bunny, Provincial Treasurer of Wellington, and says, " You are hereby authorized to pay or cause to be paid to the persons who may be or may become respectively entitled thereto, the several sums hereinafter mentioned." So that the only person who is to see who are entitled to receive the money is Mr. Henry Bunny. By the Constitution Act, the Superintendent is the only person who is to see to these things, and yet he delegates this power to Mr. Henry Bunny, who is also to see that everything is done; " and for so doing this authority with the several abstracts supported by the proper vouchers and acquittances of the parties who are respectively entitled to the sums mentioned herein shall be your sufficient warrant and discharge." I submit that the person who signs the warrant must have some control in the matter of the expenditure. The Provincial Treasurer has no direct responsibility. From the Constitution Act downwards it is the Superintendent who is treated as being the person to control the expenditure, and to say to whom the money is to be paid. It is therefore clearly not a warrant within the meaning of the Constitution Act. It is not a warrant within the meaning of the Audit Act, because to be so it should point out to the Treasurer the persons to whom he is to issue cheques and the amounts to be issued. It might very well be, that after the issue of this warrant the Superintendent would have one