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A compendium of official documents relative to native affairs in the South Island, Volume One.

Friday, 28th August, 1868

Friday, 28th August, 1868.

The Committee met pursuant to notice.

Present:—Major Atkinson, Mr. Cargill, Mr. Carleton, Mr. Haughton, Mr. Rolleston, and Mr. Tancred.

Order of reference of 26th August read.

The Attorney-General was then called in, and the following questions put to him:—

1.By the Chairman.] Your opinion, in August, 1866, was as follows:—"The grant itself has no such retrospective effect. I think, however, that the money ought to be paid to those who are now page 164deemed entitled to the land. Clearly the Crown ought not to retain it as part of its revenue. I am disposed to think, as the Commissioner of Waste Lands has recovered it and paid it into the Treasury, the money ought not to be taken out of the Treasury without the Governor's warrant, and that his warrant should not be given without the sanction of the Legislature. I do not think that the mere separation and name of the account under which the money has been paid makes any difference. This is not a case where a statute permits money to be kept at a separate account, and to be dealt with without specific appropriation." Are you aware of any circumstances which would alter your opinion at the time of the payment of the money in 1867?—I cannot say that I recollect any other facts than those that appear on the papers. My opinion in 1866 is an intimation of what would appear to be proper, seeing that those moneys had been mixed up with public moneys. I believe there is an opinion about a year afterwards. I am told that I had a conversation with Mr. Fitzherbert before giving the second opinion. I have an indistinct recollection that such is the fact. If I was told by him that this £6,031 18s. 9d. was not confused with the public moneys, then I have no doubt I should have said that the £6,031 18s. 9d. might be paid without the sanction of the Comptroller or appropriation by the Legislature. I also think that, even if he had not stated that the moneys were not confused, but had informed me that they were rents received under the circumstances under which they had undoubtedly been received, the fact of paying them by mistake into the Public Account would not make them revenue, or render it necessary to obtain the sanction of the Comptroller or appropriation by the Legislature in order to obtain their withdrawal from the Public Account. I believe that I should have given this opinion, because it is now my opinion, and I have given a similar opinion on another matter. I may state as a matter of fact that certain moneys were paid into the Public Account by the Registrar of the Supreme Court in Dunedin in 1868 by mistake, after the Public Revenues Act was in force. A difficulty arose about the withdrawal of those moneys from the Public Account. On that occasion I gave advice, as appears in the opinion I now lay before the Committee. Much correspondence took place on the subject, the Comptroller declining to sanction the removal of the money. There is a telegram by Judge Chapman among the papers as follows:—"The money, of which the Government has full particulars, was not paid into the Public Account by order of any Judge. It got into the Public Account, instead of the Deposit Account, by the accidental mistake of a clerk. It is now out of the reach of a Judge's order, and should be transferred at once. The rules of 1845 are repealed by the Supreme Court Act of 1860. (Signed) H. S. Chapman."
2.Does the Bill, as introduced in 1867, validate the grant, having in view the words "the Superintendent is entitled," &c.?—It is difficult to say. The Bill no doubt assumes that the Superintendent is entitled to the land.
3.What effect in law has the guarantee of the Superintendent of Otago, as given in his letter of the 24th of September?—I don't think it has any effect in law. It was considered desirable that there should be a record of the terms on which the money was paid out. It was understood that the Legislature could always enforce the arrangement.
4.By Mr. Carleton.] Money having been paid into the Public Account, no matter from what source, is there any means of legally expending it without the knowledge or sanction of the Comptroller? —If any has been paid in by error, I am of opinion that, if the Bank permits it, it may be drawn. I should not wish this to be taken as a deliberate opinion.
5.Was the Comptroller legally justified under the circumstances in letting the money, £24,431 2s. 2d. go into deposit?—I don't know anything about the facts of this £24,431 2s. 2d.
6.On the assumption that the Comptroller was not justified, can the money be considered as being legally out of the Public Account?—Undoubtedly the Bank is responsible for this amount, on the assumption that the moneys ought not to have been taken out. The money may still, in law, be deemed to be in the Public Account.
7.Is the introduction of an empowering Bill, enabling the Treasurer to pay over to the Superintendent of Otago the £6,031 18s. 9d., consistent with the assumption that the Treasury was already in a position legally to make such payment?—Assuming that there was a political reason, such as a desire to avoid responsibility, then it would be advisable to have authority by an empowering Act. It should be borne in mind, also, that the Government had no intention of deciding the question, and, moreover, a grant had been inadvertently issued for the land. A further reason would be that the matter seemed likely to be deferred indefinitely, and it was desirable that the money should be paid to one party or other, without prejudice to the opposing claimants.
8By Mr. Tancred.] Would the Public Revenues Act prevent the payment of these rents without the Comptroller's sanction?—Yes; but at the time of the payment the Public Revenues Act had not been passed.
9.Was the Bill prepared by you?—I don't recollect; but I have no doubt, if it was introduced by the Government, it was prepared by me.

On motion of Mr. Carleton, the Attorney General was thanked for his attendance.

On motion of Major Atkinson, the Committee adjourned until Tuesday, the 1st day of September, at 10 o'clock a.m.