CO885-(11-13) — Page 247

PUBLIC RECORD OFFICE

Reference :-

TTICO. 885

IT

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

MY LORD,

No. 36.

(GIBRALTAR.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, 14th August 1874. We are honoured with your Lordship's commands, signified in Mr. Herbert's letter of the 6th August instant, stating that he was directed by your Lordship to request our opinion on the following question in connexion with the "Gibraltar Sanitary Order in Council, 1874."

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2. That the city and garrison of Gibraltar is held by the Queen in right of conquest; and Her Majesty there enjoys the right of legislating by Order in Council; subject to this right the Governor may, under the second section of his commission, of which a copy was enclosed, make laws for the peace, order, and good government of the city.

3. That the usual mode of legislation in matters of importance had been by Order in Council; and in accordance with the usual practice, Her Majesty, on the 12th of May in the present year, passed in Council the enclosed Order relating to a scheme for a more complete sanitary improvement of the town than had yet been undertaken.

4. That this Order, which was drafted by the local Attorney-General, in a very long and minute preamble, recites various past facts and proceedings in connexion with the sewage of the town, and amongst other things, it recites as a fact-(at the bottom

page

6 and the top of page 7)—that certain "plans, books of reference, estimates.

of

"

44

and scheme verified by his Excellency Sir William Fenwick Williams, Governor of Gibraltar, approved by Her Majesty, have been deposited in the registry of the Supreme Court.”

5. The Order in Council provided for its own commencement on a day to he proclaimed by the Governor (s. 1).

6. That it was proclaimed in pursuance of this section on the 27th of June.

7. But up to that date and afterwards the plans, books of reference, estimates, and scheme, although (as admitted) approved by Her Majesty, had not been verified by the Governor, nor deposited in the registry of the Supreme Court, as was recited to be the case in the preamble of Her Majesty's Order.

8. That the attention of the local Attorney-General having been called to this irregularity he had, as would be perceived from a perusal of the enclosed despatch from the Officer Administering the Government, advised that the Sanitary Com- missioners of Gibraltar cannot commence the "projected works" contemplated by the Order of the 12th of May without a new Order in Council, the plans, &c., not having been duly verified and deposited previous to the commencement of the Order in Council, as it was erroneously recited that they had been in the preamble.

9. That in reference to this argument Mr. Herbert stated that he was to draw our attention to the fact that by the 30th section of the Order in Council the Sanitary Commissioners are directed to construct the works contained in the plan "now approved by Her Majesty" without reference in any way to the supposed fact of such plans being in the registry of the Supreme Court, and

10. Mr. Herbert further stated that he was to request our opinion on the following questions:-

(1.) Whether upon a true view of the law relating to the construction of legislative Acts the mistaken recital of a collateral matter vitiates the enacting clauses of the instrument.

(2) Whether by the omission to deposit the plans, &c., in the registry any such uncertainty has been created in regard of the particular matters authorised to be done as to render it unsafe for the Commissioners to proceed with the works indicated in the plans approved by Her Majesty and now produced from the custody of the engineers to the Sanitary Commissioners.

(11.) That if we answered either of these questions in the affirmative your Lordship would further desire to be advised whether looking to the terms of the second clause of the Governor's commission the error cannot be rectified by an ordinance of the

▲ 12916.-96.

25.-12/84.

2

9618.