No. 50, Financial
1st August 1864
1. I have the honor to submit for your consideration the documents named in the enclosed Schedule.
2. Shortly after assuming the Government of this colony I directed my attention to its financial condition, and observed that a large arrear of the Real Estate TaxremainedManuscript image remained uncollected over several years.
3. Knowing the high market value of real property in Victoria and the solvency and prosperity of its owners, I was naturally surprised at finding this large arrear, and addressed myself to the Treasurer for information in the Queries herewith.
4. That officer's Report and replies will be found herewith.
5. On receiving that Report I caused an inquiry to be addressedtoManuscript image to the Attorney General, and on the same date I caused a letter to be addressed to the Chief Justice.
6. The replies to these letters are now transmitted with other papers bearing upon the same subject.
7. I also enclose a copy of "The Real Estate Tax Amendment Act 1862" to which these letters and documents refer.
8. You will observe that the Attorney General and the Chief Justice are directly at issue astoManuscript image to the power conferred on the Executive by Sections 42 and 43, and it would therefore be most inexpedient to attempt to enforce the collection of these arrears before a Judge avowing and having given publicity to the opinions conveyed in his letter dated 26th July 1864.
9. The doctrine laid down in the letter of the Chief Justice that he did not think the Legislature of Vancouver Island had authority to make such a Law as that under consideration appears to metoManuscript image to be wholly fallacious, and if carried out to its full extent would render local legislation useless.
10. "The Real Estate Tax Amendment Act, 1862" was duly passed by both bodies of the Legislature and assented to by the Governor and has not been disallowed by Her Majesty.
This Act was allowed by H.M.
11. There is unfortunately no Appeal from the Chief Justice on points involving the construction of local laws, and I fear that great evils have already arisen from a want of decision and firmness in the administration of them.
12. ItManuscript image
12. It is obviously useless for the local Legislature to pass laws if the Chief Justice is authorized to set them aside or refuse to enforce them on the grounds of their impolicy which it would be out of place here to discuss.
13. I regret exceedingly to trouble you with this matter on which I would ask for a legal opinion.
14. The law business of this Colony whether as administered by the Chief Justice or conducted by the Attorney General is in a very unsatisfactory condition, and IshallManuscript image shall probably be under the necessity of addressing you upon this subject at an early period.
15. I am unable to discover any record of the reasons for these arrears being allowed to accumulate since 1860 beyond those contained in the documents which I enclose.
I have the honor to be,
Your very obedient Servant
A.E. Kennedy
Minutes by CO staff
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Sir F. Rogers
Possibly you will be able so to advise Mr Cardwell on this point as may enable him to express an opinion thereon witht any reference to the Law Officers of the Crown. But it strikes me that if the local Authorities are perplexed in consequence of doubts thrown out by the Chief Justice on a question of Law and if opinions are desired for their guidance from the English Law Officers the Colonial funds, & not the English Treasury shd pay for the same. I see no Imperial element in this.
It has been considered that it was useful that Col. Govts & Legislatures shd be guided by the opinion of the English Law Officers & that it was undesirable to discourage applications of this kind by making claims for payments.
I have no doubt that the C.J. is wholly wrong. But a C.J. is a C.J. and I wd therefore send copies of these papers to the L. Offrs directing their attention to the 42nd 45h 47h & 53rd sections of the "Act to amend &c." and to the opinion expressed in the C.J.'s letter of 26 July 1864 to the effect that the Lre of V.C.I. had not authority to make Real ppty in V.C.I. alienable for a charge wh is only a personal one in England. Enclose also copy of the Charter conferring Lege Auth[orit]y on the V.C.I. Legre
I think Douglas Com[mission].
and request to be informed whether after perusing these papers the L.O. think that there is any reason for doubting the validity of the clauses above set forth.
FR 22/9
EC 27
Documents enclosed with the main document (not transcribed)
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Copy, Memorandum, Acting Colonial Secretary Henry Wakeford to Treasurer Alexander Watson, 7 June 1864, calling for information on arrears of real estate and trade license taxes.
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Report by Watson, 11 July 1864, on the arrears of taxes levied during the years 1860, 1861, 1862, and 1863 (five pages).
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Copy, Wakeford to Attorney General George Hunter Cary, 19 July 1864, asking his opinion as to enforcing collection of arrears of taxes.
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Copy, Cary to Acting Colonial Secretary, 20 July 1864, replying to his request of 19 July.
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Copy, Wakeford to Chief Justice, 19 July 1864, inquiring as to obstacles in the way of collection of arrears of taxes.
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Copy, Cameron to Acting Colonial Secretary, 26 July 1864, explaining his reservations about the Real Estate Tax Amendment Act of 1862.
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Colonial Secretary W.A.G. Young to Treasurer, 27 November 1862, instructing him "not to refuse acceptance of any Taxes when tendered, notwithstanding that the legal period for the payment of such Taxes may have expired."
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Copy, Young to Treasurer, 30 July 1863, instructing him to publicize the fact that all property with taxes still outstanding as of 22 May 1864 would be sold by auction.
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Copies of minutes which passed between Kennedy, Wakeford, Watson, and Sheriff William B. Nayler, 30 July and 1 August, in which it is determined that the Colonial Secretary had instructed the Sheriff not to proceed with any sales of the lands in question.
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"An Act to Amend the 'Real Estate Tax Act, 1860,'" passed by the Legislative Assembly 23 October 1862, received Douglas's assent 17 December 1862.
Other documents included in the file
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Rogers to Attorney General and Solicitor General, 5 October 1864, forwarding copies of the despatch and enclosures and asking for their opinions on the legal questions raised.