Consul Cusack Smith
to the Marquis of Salisbury.
No. 26.]
Samoa, August 16, 1892.
(Received September 15.)
[Navigator’s Islands, September 15. Confidential, 225;
section 3.]
No. 1.
My Lord: I have the honor to report that Baron
Senfft von Pilsach, in a letter dated the 23d December, 1891, copy
inclosed, to the then acting chairman of the municipal council, refused
to carry out a resolution of the council ordering the withdrawal of the
moneys deposited by the president in his own name in a bank in Sydney.
The position he assumed was an extraordinary one. After stating, that in
his opinion,
[Page 574]
there was only
one treasury common both to the Samoan Government and the municipality
instead of a distinct treasury for each, he proceeds: “Neither the
Samoan Government are entitled to interfere in the same, the treasury
containing moneys held for the use of the municipal council of Apia, nor
the municipal council, considering that the treasury comprises moneys to
he used by the Samoan Government.”
Having shaken off all control or interference, he admits that “the
treasurer is subject to the orders of payment made by the council, but
not to any instructions concerning the administration of the treasurer.
He further tells the municipal council, “You will find that even the
treasurer’s quarterly reports must show his receipts and disbursements,
but not his administrative measures.
A profound feeling of dissatisfaction and uneasiness was aroused on this
notification that the municipal balance was not to be kept separate, and
that it might entirely be swallowed up, except on paper, at any time by
the requirements of the Samoan Government.
On appeal to the chief justice, in a lengthy judgment he decided that
Baron Senfft von Pilsach “was justified in refusing to accept the
instructions of the municipal council.”
Here the matter might have rested, but that this week the inclosed report
of the municipal auditors has been laid before the consular board.
It states that “there should have been on the 31st March, 1892, a balance
of 572l,” but that the auditors were unable to
certify to the correctness of the cash, as “they were not allowed to
check it.”
There is no bank in Samoa, and the only way in which public confidence
can be maintained is by verifying the cash balances at every audit.
The financial administration of the funds of the municipal council and of
the Samoan Government should be kept quite distinct, and nothing done to
raise unnecessary distrust.
I have, etc.,
[Inclosure 1 in No. 1.]
Baron Senfft von
Pilsach to the municipal
council, Apia.
Apia, Samoa, December 23, 1891.
Gentlemen: I have the honor to acknowledge
receipt of your letter, dated the 11th instant, through which you
notify to me a resolution passed by the municipal council of Apia oh
the 25th November, and approved by the consular board, saying that
the treasurer be instructed to withdraw the municipal moneys from
the Union Bank, Sydney, as soon as the terms of deposit have
expired, and to deposit the same in United States gold in the
municipal treasury in Apia.
In reply, I beg to state that in passing this resolution the
municipal council have transgressed their competency as it is laid
down in Article v, section 3, of the
Berlin general act. According to this article there exists neither a
special treasurer nor a special treasury of the municipal council of
Apia. All the revenues accruing under the provisions of this act
(see Article v,
section 5, fourth clause) are paid into the treasury (Article vi, section 3), the administration of
which is intrusted to one treasurer to be appointed, not by the
municipal council, but by the Samoan Government upon the previous
agreement of the signatory powers. A municipal treasury does not
exist but in the ledgers and accounts of the treasury.
The treaty having thus constituted one treasury comprising the whole
of the Samoan revenue, apparently its administrator must be guided
also on one way.
Neither the Samoan Government are entitled to interfere in the same,
the treasury containing moneys held for the use of the municipal
council of Apia nor the municipal council, considering that the
treasury comprises moneys to be used by the Samoan Government.
The treasurer is subject to the orders of payment made by the
council, but not to any instructions concerning the administration
of the treasurer. You will find that even his quarterly reports must
show his receipts and disbursements, but not his administrative
measures, although the matter of the resolution which you have
forwarded to me has been under my consideration before I received
your communication.
Yet I must refuse to accept such instructions, the formal want of
which I have stated is not the only reason for my doing so, as the
respective resolution does not explain the practical reasons which
have led the council to pass the same; I am unable to examine those
reasons. In omitting such explanation the council have failed to
understand my position.
[Page 575]
Being the only custodian of the public moneys, I am not allowed to
carry out any instructions or to follow any recommendation without
having convinced myself of its expediency.
I shall be obliged if you kindly will communicate these remarks to
the municipal council of Apia.
I have, etc.,
Frhr. Senfft von
Pilsach.
[Inclosure 2 in No. 1.—Newspaper
extract.]
the president’s power as
treasurer.
Decision of the chief
justice.
This is a matter in controversy between the municipal council of Apia
and the president, Baron Senfft von Pilsach, as receiver and
custodian of the Samoan revenue.
In a meeting held on the 25th November, 1891, the municipal council
passed the following resolution, viz:
“That the treasurer be instructed to withdraw the municipal moneys
from the Union Bank of Australia, Sydney, as soon as the terms of
deposit have expired, and to deposit the same, in United States
gold, in the municipal treasury.”
The consular board notified their approval in a communication dated
the 4th December, 1891. This instruction having been duly notified
to Baron Senfft von Pilsach by letter dated the 11th December, 1891,
written by the chairman pro tempore, Baron
von Pilsach refused, by letter dated 23d December, to accept the
instructions in question. In a meeting, held on the 30th December,
the council resolved to refer the matter to this court for
settlement.
From the written statement of the parties I learn, concerning the
matter in dispute, that the president asserts that the municipal
council, in passing the first resolution, exceeded the powers
conferred upon it by the Berlin general act, whereas the council
maintains that it had the right to give the instructions in
question, and that the resolution in question is regular and valid
and strictly within the powers of the council, under the Berlin
general act, and that, in disobeying the instructions of the
councils in this matter, the president has exceeded his powers and
contravened both the wording and the spirit of the act. The point at
issue is thus this: Was the president of the municipal council of
Apia, as treasurer of the Samoan revenue, justified in refusing to
accept the instructions of the municipal council?
In dealing with the question I have not failed to observe that the
said resolution of the 25th of November, 1891, has been passed in
the regular way, and is formally valid.
This, however, is not the only matter to be considered in deciding
the question now before me. There is no doubt that the President is
not only entitled, but bound, to omit the carrying out of any
resolution, though formally valid, if the tenor of such resolution
be in conflict with the provisions or the spirit of the Berlin in
general act. It therefore also has to be considered whether or not
such is the case with the resolution in question. In this respect
section 5, Article v, of the Berlin
general act provides that the President shall be the receiver and
custodian of the revenue accruing under the provisions of the
act.
In this capacity he may under the same section receive and act under
the joint instructions of the three treaty powers, but besides the
instructions which may be given him in such way his instructions are
contained in the general act itself, and Articles v and vi contain
provisions concerning his duties in his aforesaid capacity. We shall
be guided by those provisions and by the spirit of the general act,
and to ere is nothing in the spirit nor in the provisions that
imposes upon him the duty of obeying any instructions of the
municipal council in the administration thus intrusted to him. That,
as the municipal council points out, the authority to give such
instructions is exercised by other local bodies as against their
treasurers has no bearing upon the matter in question, since the
position of such treasurers is not to be compared to the position of
the president as custodian of the revenue of this Kingdom. Moreover,
the analogy derived from the powers of local bodies in foreign
countries of the highest civilization and culture is not applicable
to the local circumstances of this country, the requirements of
which always must be guided in the interpretation of laws as far as
such interpretation can be constructive. I, therefore decide that
the said resolution of the 25th November, 1891, is void as in
conflict with the Berlin general act, and that the president, Baron
Senfft von Pilsach, was justified in refusing to accept the
instructions of the municipal council.
The municipal council shall pay the costs in this matter.
[Page 576]
[Inclosure 3 in No. 1.]
Messrs. Trood and
Aspinall to the municipal
council, Apia.
Apia, Samoa, June 20, 1892.
Gentlemen: In conformity with your
instructions contained in letter of the 96th of May, we have audited
the accounts of the municipal council up to 31st March last. We have
examined the vouchers, compared them with the hooks, and find the
figures correct, showing that on the 31st March, there should have
been a cash balance on hand of $2,880.22 as per balance sheet
submitted to us.
As intimated to you in ours of the 30th March, we are unable to
certify to the correctness of the cash, as we were not allowed to
check it. With regard to the statement (signed by the president) of
moneys transferred from the municipality to the Government, and
referred to in yours of the 9th May, we have simply taken it as any
other voucher, as we did not deem it our province to enter into the
items.
We notice a marked improvement in the bookkeeping from the
commencement of the year; previous to that they were confusing to
any stranger taking them in hand.
We would suggest that auditors be appointed for a term and that they
have access to the books at any time, as is the usual custom with
public bodies. This would greatly simplify the matter for the
auditors, as they could then keep in touch with the work throughout
and the council would receive their audits whenever required.
We are, etc.,
- Thomas Trood.
- R. P. Aspinall.
