Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Despatch to London
Kennedy, Arthur to Cardwell, Edward 1 August 1864, CO 305:23, no. 8758, 19.
Abstract
Despatch to London.
Minutes (2), Enclosures (untranscribed) (10), Other documents (1), Marginalia (2).
Kennedy forwards correspondence documents regarding property tax legislation in Victoria and the Chief Justice’s decision that the
The Real Estate Tax Amendment Act 1862is extralegal. Rogers minutes his opinion that the Chief Justice is
wholly wrongand recommends that the Colonial Office send to Kennedy a copy of the Charter that confers legislative power to the Vancouver Island House of Assembly.
No. 50, Financial
1st August 1864
Sir
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 Taxremained
remained uncollected over several
years.
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 addressedto
to
the Attorney General, and on the same date I caused a letter to be
addressed to the Chief Justice.
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 asto
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.
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 meto
to be
wholly fallacious, and if carried out to its full extent would render
local legislation useless.
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. It
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 Ishall
shall probably be under the necessity
of addressing you upon this subject at an early period.
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.
Minutes by CO staff
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.
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.
[ABd]
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
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.
Documents enclosed with the main document (not transcribed)
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.
Report by Watson, 11 July 1864, on the arrears of
taxes levied during the years 1860, 1861, 1862, and 1863 (five
pages).
Copy, Wakeford to Attorney General George Hunter Cary, 19 July 1864,
asking his opinion as to enforcing collection of arrears of taxes.
Copy, Wakeford to Chief Justice, 19 July 1864, inquiring as to
obstacles in the way of collection of arrears of taxes.
Copy, Cameron to Acting Colonial Secretary, 26 July 1864, explaining
his reservations about the Real Estate Tax Amendment Act of 1862.
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."
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.
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.
"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
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.