No. 65
31st August 1864
I have the honor to transmit a copy of an opinion of Mr Cary, late Attorney General, and a Judgment of His Honor The Chief Justice in connection with the Corporation Act of the City of Victoria.
You will observe that theseOfficersManuscript image Officers are directly opposed to each other on the construction of a local Act, the practical effect of which has been to paralyse the action of the Corporation altogether, to the great physical and moral detriment of the inhabitants of the City.
The principle involved in this decision of His Honor is so important that I would beg for the opinion of the Law Officers of the Crown for my guidance.
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I have the honor to be,
Your very obedient Servant,
A.E. Kennedy
Minutes by CO staff
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ABd 20 Oct
TFE 20/10
1. I think that if a Governor requires the Home Govt to assist him by submitting a case to the L. Offrs of the Crown, he should assist the H.G. by sending a clear statement of theManuscript image questions which he desires to have asked, and of the facts on which the answer to those questions depend. What he in fact does is to send us three columns of a newspaper containing a variety of wide statements made by the Ch. J. and then to tell us that the principle involved is so important that he wants the opinion of the L. Offrs.
2. However I have drafted a case and in sending out the answer, it mt, I think, be as well to send out the Boothly Papers
These Papers have already been sent to the Govr. See 9762 & draft.
VJ 25 Novr
for instructions sake.
3.Manuscript image And in sending out the opinion I wd also observe that if the Governor shd at any time hereafter find it advisable to request the opinion of the L Offe in this country, the request should be accompanied by a clear & specific statement of the questions to which he required an answer and of the facts on which that answer depended, with copies of all material documents (as in this instance of the Corporation By Law) and that if in this case the information he received was not exactly what he desired the defect will be due to the imperfect mode of reference which he has adopted.
4. Add that altho' Mr C. has obtained this [opinion?] at his request, the question does not appear to be really a question for the Govt but for the City Corporation with whom (as far as present appears) it rests to consider in what manner they canManuscript image effectually establish their own rights. Add that the Govr will of course be aware that the opinion of the L. Offrs has no legal effect or authority in the Supreme Court, and that the only mode of reversing in V.C.I. a decision given by the C.J. of that Colony is by bringing that decision before the duly constituted Court of Appeal.
FR 21/10
Documents enclosed with the main document (not transcribed)
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City Council to Kennedy, 14 May 1864, forwarding documents and supplying information relative to the dispute surrounding the corporation of the City of Victoria, signed by A. Austen, Town Clerk.
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"Queries submitted for the opinion of the Honble the Attorney General, October 1862," citing five questions posed by the Municipal Council to be considered with regard to the corporation issue.
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G.H. Cary, Attorney General, to W.A.G. Young, Colonial Secretary, 13 October 1862, responding in detail to each of the five questions as noted above.
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Printed copy of the "Act to Incorporate the City of Victoria," six pages.
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Newspaper clipping, unnamed, 16 December 1863, discussing the question of corporation in relation to the case of Ring versus Harris and Austen currently under consideration in the supreme court.
Other documents included in the file
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Elliot to Attorney General and Solicitor General, 29 October 1864, forwarding copy of the despatch and enclosures and asking for an opinion on the question.