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From ike Office of the " Presbi/tenan Record;* 
 ! ; 360 St. James Street, Montreal. 
 
 ■h 
 
 A>i 
 
 i 
 
 THE 
 
 
 PEIVY COUNCIL JUDGMENT 
 
 IN THK 
 
 TEMPORALITIES CASE. 
 
 Judgment of the Lords of the Judicial Cotn- 
 mittee of the Privy Council on the Ap- 
 peal of the Rev. Robert Dobie vs. the 
 Board for the management of the Pres- 
 byterian Church ot Canada in connec- 
 tion wifh the Church of Scotland, et al., 
 from ti.d Court of Queen's Bench, de- 
 livered 2l8t January, 1882. 
 ^resent— Lord Blackburn, Lord Watson, 
 i?!' Barnes Peacock, Sir Montague Smith, 
 Sir Robert P. Collier, Sir Richard Couch, 
 Sir Arthur Hobbouse. 
 
 Tbe first question raised in this appeal is, 
 whether the Jjegislature of tbe Province of 
 Quebec had power, in the year 1875, to 
 modify or repeal the enactments of a statute 
 passed by the Parliament of the Province of 
 Canada in the year 1858 (22 Vict., cap. 66), 
 intituled " An Act to incorporate the Board 
 "for the management of the Temporalities 
 " Fund of the Presbyterian Church of Ca- 
 "nadain connection with the Church of 
 «• Scotland." 
 
 The fund subject to the administration of 
 the Board constituted by the Act of 1858 
 consistedof a capital sum of £127,448 5s, 
 sterling, which was paid by the Government 
 of Canada under the following circum- 
 stances. The ministers of the Presbyterian 
 Church of Cauada, in connection with the 
 Church of Scotland, were entitled, by virtue 
 of certain Imperial statutes, to an endow- 
 ment or annual subsidy out of the revenues 
 derived from colonial lands, termed Eclergy 
 reserves, and from moneys obtained by 
 the sale ot portions of these Unds, supple- 
 mented when necessary, trom the Exche- 
 quer of Great Britain. But this connec- 
 tion between the Presbyterian t^huroh and 
 the State was at length dissolved. In i853, 
 an Act was passed by the British Parliamont 
 (16 Vict., cap. 21), authorizing the Legisla- 
 ture of the Province of Canada to 
 
 dispose of the clergy reserves, and 
 investments arising from isalos theteof, but 
 reserving to tlio clergy the annual stipends 
 then enjoyed by them, and that during the 
 period of their natural lives or incumben- 
 cies. In 1855, the LegisLiture of Canada, in 
 exercise of tbo power thus conferred, en- 
 acted that all union between Church and 
 State should cease, and that those ministers 
 who were admitted to office after the 9th 
 May, 1853, being the date of the Act, 16 
 Vict., cap .21, should receive no allowance 
 from the Government. It was, however 
 provided that the rights of ministers en- 
 titled, at that date, to participate in the 
 State subsidy, should be reserved entire, 
 prwer being given to the Governor-General- 
 in-Council to commute the annual stipend 
 payable to each individual so entitled for 
 the capital value of such stipend, calculated 
 at six per cent, on the probable life of the 
 annuitant. 
 
 All the ministers interested consented to 
 accept the statutory terms of commutation, . 
 and agreed to bring the amounts severally ' 
 payable to them into one common fund, to 
 be settled for behoof of the Presbyterian 
 Church of Canada in connection with the 
 Cliurch of Scotland. In accordance with 
 resolutions unanimously adopted by the 
 Church in Synod assembled on the 
 nth January, 1855, they further agreed that 
 the interest of the fund should be devoted, 
 in the first instance, to the payment of an 
 annual stipend of i;il2 lOs, to each com- 
 mutor, and that the claim next in order of 
 preference should be that of ministers then 
 on the -oil, who had been admitted since 
 the 9th May 1853. The arrangement thus 
 elfected was carried out by eight Commis- 
 sioners duly appointed for that purpose, 
 of whom three were ministers and five were 
 laymen. They received payment of the 
 
 ir^iiO'J 
 
3 
 
 commutation moneys, to the amount al- 
 reaciyr stated ; and in order to provide for 
 the m inagoment of tiie fund thus obtained, 
 the Legislature of the Province of Canada, 
 upon the application of the Commissiouers, 
 passed the Act 22 Vict., cap. 68. 
 
 By the fir<t clause of the Act in question, 
 the Commissioners were, along with four 
 additional members and their successors, 
 d-iclared to be a body politic and corporate, 
 by the name of the " Board for the manage- 
 « montof the Temporalities Fund of the 
 " Presbyterian Church of Canada in con- 
 " nection with the Church of Hcotland ;" 
 and the funds held by them as Commission- 
 ers were vested in the Board " in trust for 
 «' the said Church," subject to the condition 
 that the annual interest thereof sliould 
 remain chargeable with the stipends and 
 allowances payable to the parties entitled 
 thereto, in terms of the arrangemsnt under 
 which the fund was contributed by the 
 commntors. It was enacted that, at the 
 first meeting of Synod held after the pass- 
 ing of the Act, three Commissioners, one 
 minister and two laymen, should retire 
 from the Board, and that seven new mem- 
 bers, consisting of four ministers and three 
 laymen, should be elected by the bynod. 
 The Board thus reconstituted was composed 
 of six ministers and six laymen, and it was 
 provided that at each annual mooting of the 
 Bynod held thereafter two ministers and 
 two laymen were to retire by rotation, and 
 that four new members, two clerical and 
 two lay, should be elected in their stead. 
 It C.8 expressly enacted that all members 
 of the Board should also be members of the 
 Presbyterian Church of Canada in connec- 
 tion with the Church of Scotland : and 
 provision was made for filiine up vacancies 
 occasioned by the death o"- resignation of a 
 member, by his removal from the Province 
 of Canada, or by his leaving f he communion 
 of the said Church. 
 
 In the year 1874, seriou. proposals had 
 been n.ade for an incorporative union be- 
 tween the Presbyterian Church of Canada 
 in connection with the Church of Scotland, 
 the Canada Presbyterian Church, the Church 
 of the Maritime Provinces in connection 
 with the Church of Scotland, and the Pres- 
 byterian Church of the Lower Provinces. 
 The old Parliament ©f the Province of 
 Canada had by this time been abolished, 
 and its legislative power had been distribu- 
 ted between the two provincial'Legislatures 
 of Ontario and Quebec, and the new Parlia- 
 ment of the Dominion of Canada, under the 
 provisions of the " British North America 
 Act, 1867." With the view of facilitating 
 the contemplated union of the Churches, an 
 Act of the Legislature of Quebec was passed 
 iU Fsbruary i87s (38 Vict,, cay, 02), iu 
 
 order to remove any obstruction which 
 might arise from the form and designation 
 of the several trusts or acts of incorporation 
 by which the property of the Churches was 
 held and administered. By the llth section 
 of that Act, it was provided that, in the 
 event of union taking place, the members 
 then corstituting the Board for manage- 
 ment of the Temporalities Fund, under 
 the Act of 1858, shoi'ld remain in 
 office, and pay over the revenue 
 to the persons previously entitled to 
 it ; that any revenue not required for 
 that purpose should pass to and be 
 subject to the disposal of the united 
 Church ; and that any part of the fund re- 
 maining after satisfying the claim of the 
 last survivor of thos >, entitled should be- 
 long to the Supreme Court of the United 
 Church, and be applied to the aid of 
 weak congregations. It was by the same 
 clause enacted that vacancies occurring in 
 the Temporalties Fund Board should not 
 be filled up in the manner theretofore ob- 
 served, but should be filled up in the man- 
 ner provided by another Act of the Quebec 
 Legislature. 
 
 This last-meHtionod statute (38 Vict., 
 cap. 64), which received the assent of the 
 Governor-General-in-Councll upon the same 
 day as the preceding, was passed with the 
 professed object of amending the Act of the 
 Parliament of the Province of Canada, 22 
 Vict., cap. 66. It wmj thereby enact«d 
 that, from the time when the union was 
 effected, the annual allowances to which 
 they were previously entitled were to be 
 continued by the Temporalities Board to 
 ministers and probationers then on the roll 
 of the Presbyterian Church of Canada in 
 connection with the Church of Scotland, 
 and these were to be paid, so far as neces- 
 sary, out of the capital of the fund, and that 
 any surplus of revenue or capital, after 
 satifying these charges, should be at the 
 disposal of the united Church. Ministers 
 and probationers of the Church, interested 
 in the temporalities fund, who might de- 
 cline to become parties to the union, were, 
 however, to retain all rights previously 
 competent to them until the same lapsed 
 or were extinguished. The constitution of 
 the Board of Management was altered by 
 the third and eigbth clauses of the Act. 
 The third clause is in these terras :-^" As 
 " often as any vacancy in the Board for the 
 " management of the said temporalities fund 
 " occurs, by death, resignation, or otherwise, 
 " the beneficiaries entitled to the benefit of 
 " the said fund may each nominate a person, 
 " being a minister or member of the said 
 " united Church, or, in the event of there 
 " being more than one racancy, then one 
 " pdmou for each vacaacy, aad the rsmaoeiit 
 
3 
 
 tion which 
 (iesignaUoQ 
 corporatioa 
 ■urches was 
 1th section 
 :hat, in the 
 le members 
 >r manage- 
 iud, uuder 
 remain in 
 revenue 
 mtitled to 
 iquired for 
 to and be 
 the united 
 e fund re- 
 lim of the 
 should be- 
 ;he United 
 ho aid of 
 the same 
 ;currlng in 
 should not 
 tofore ob- 
 a the maa- 
 the Quebec 
 
 (38 Vict., 
 
 sent of the 
 
 >n the same 
 
 with the 
 
 Act of the 
 Canada, 22 
 )}r enactsd 
 union was 
 
 to which 
 rere to be 
 3 Board to 
 >n the roil 
 
 Canada in 
 ' Bcotland, 
 
 fts neces' 
 d, and that 
 pital, after 
 be at the 
 
 Ministers 
 
 interested 
 might de- 
 lion, were, 
 previously 
 axe lapsed 
 titution of 
 tltered by 
 
 the Act. 
 ms :-^" As 
 rd for the 
 lities fund 
 otherwise, 
 I benefit of 
 e a person, 
 the said 
 I of there 
 
 then one 
 I rsmaoeat 
 
 « members of the said Board shall tbere- 
 " upon, from among the persons so nomin- 
 " ated as aforesaid, elect the person or num- 
 " her of persons necessary to fill such va- 
 " cancy or vacancieB, selecting the person 
 « or persona who may be nominated by the 
 " largest number of beneficiaries, but, in 
 " the event of failure on the part of the 
 <' beneficiaries to nominate as afoiesaid, the 
 « remanent members of the Boaid shall fill 
 " up the vacancy or vacancies from among 
 " the ministers or members of the said 
 « united Church." The eighth clause enacts 
 that the 3rd section shall contiuue in force 
 until the number of beneficiaries is reduced 
 below fifteen, upon which occurrence the 
 Board is to be continued by the remanent 
 members filling up vacancies from among 
 the ministers or members of the united 
 Church. By the 10th section it was de- 
 
 "the Presbyterian Church in Canada." 
 Notice of the union having been thus eon- 
 hummatcd was duly publitihud in the Que- 
 bec Official Qazetto. 
 
 After publication of the notice the con- 
 stitution of the Boaid for managing the 
 Temporalities Fund was altei-ed, and the 
 fund administered, in conformity with the 
 provisions of the Quebec Act, 38 Vict , cap. 
 64. In Desember 1878 the Rev. Robert 
 Dobie, who, with other members of the pro- 
 testing minority of 1875, and their adher- 
 ents, maintains that they alone represent 
 find constitute the Presbyterian Church of 
 Canada in connection with the Church of 
 Scotland, instituted, by petition to the Su- 
 perior Court for ijower Canada, the proceed- 
 ings in which the present appeal has been 
 taken. The leading conclusions of the pe- 
 tition are to have it adjudged and declared, 
 
 clared that the Act should come into force '"(1) that the Legislature of Quebec had no 
 
 as soon as a notice was published in the 
 Quebec Official Gazette to the effect that the 
 union had been consummated, and that the 
 articles of union had been signed by the 
 Moderators of the respective Churches. 
 
 On the 14th day of June, 1875, the 
 Synods of the four Churches met at Mont- 
 real, and in each a resolution was carried 
 in favour of union. In the Synod of the 
 P'-esbyterian Church of Canada in connec- 
 tion with the Church of Scotland it was 
 resolved, by a very large majority of its 
 members, that the four Churches should b'3 
 united, and form one Assembly, to be 
 known as " The General Assembly of the 
 Presbyterian Church in Canada," and that 
 the united Church should possess the same 
 authorities, rights, privileges, and benefits 
 to which the Presbyterian Church in 
 Canada in connection with the Church 
 of Scotland was then entitled, excepting 
 such as had been reserved by Acts of Par- 
 liament. The minority, which consistei; of 
 the Appellant, the Rev. Robert Dobie, and 
 nine other members, dissented from the 
 action of the Synod, and protested that they, 
 and those who might cLoose to adhere to 
 them, remained and still constituted the 
 Presbyterian Church of Canada in connec- 
 tion with the Church of Scotland. 
 
 On the 15th June, 1875 the mnjority of 
 the Synod of the Presbyterian Church of 
 Canada in connection with the Church of 
 Scotland, and the Synods of the other unit- 
 ing Churches, met in General Assembly, 
 when the Articles of Union were signtd by 
 the Moderatord of each of the four Church- 
 es ; and thereupon one of the Moderators, 
 with the consent and concurreuco of the 
 rest, declared the four Churches lo bo unit- 
 ed In one Church, represented by that its 
 first General Assembly, to be designated 
 aad known as " The General Assembly oi 
 
 power to alter the constitution of the Board i/ 
 or the purpobe of the t* u»t created by the 
 Canadian Act, 22 Vict., cap. 66, and conse- 
 quently that the administration of the trust 
 ai carried on in terms of the Provincial Act 
 of 1875 is illegal : (2) that the protesting 
 minority of the Synod of 1875, and its ad- 
 herents, are now the Presbyterian Church of 
 Canada in connection with the Church of 
 Scotland, and that certain ministers of the 
 United Church, who were members of the 
 majority, had, by reason of the union for. 
 feited all right to participate in ;he benefits 
 of the Temporalities Fund : and ('6j to have 
 an injunction against the Bo^rd, as then 
 constituted, acting in prejudii-e of the rights 
 of the Appeihiut, and oihers beneficially in- 
 tercKted iu the htatulory trust of l658./Upou 
 the 31st December 1878 the Appellant's ap- 
 plication was heard before Mr. Justice Jette, 
 who made an order for sumtnoning the 
 Respondents, and also issued an interim In- 
 junction, which the learned Judge dissolved, 
 alter fully hearing both parties, on the 31st 
 December 1879, and at the same time dis- 
 missed the Appellani'c petition, with costs. 
 This decision was, on appeal to the Court of 
 Queen's Bench for Lower Canada, afiirmed, 
 in accordance with the ipinious of the ma- ° 
 jority of Judges. 
 
 The judgments of Mr. Justice Jette iu the 
 in the Court of First Instance, and of Chief 
 Justice Dorion and Mr. Justice Monk in the 
 Court of Queen's Bench, are based exclu- 
 sively upon the competency of the Quebec 
 Legislature to pass the Act 38 Vict, cap. 
 64, and the consequent validity of that 
 statute. On the other hand Mr. Justice 
 Ramsay and Mr. Justice Tassier were of 
 piuiou th.it the Appelliiut was entitled to 
 an injunction, on the ground that the Act 
 38 Vict, cap. 64, was invalid, and that the 
 majority of the Preabyteriaa Churcb o( 
 
Canada in connection with the Church of 
 Srotland hnd no power to communicate 
 any interegt in the Temporalitio8 Fund 
 of that Church to the religious bodies with 
 whom they had chosen to unite themselvcH 
 m 1875. Mr. Justice M'Cord waa of 
 
 opinion, with his brethren Ramsay and 
 resssier, J.J„ that the Act of the Legisla- 
 ture of Quebec was ultra 
 
 vires, but he held 
 
 that the majority of the Presbyterian 
 Church of Canada in connection with the 
 Church of Scotland had undoubted power 
 to admit into that Chureh, as mtmbers of 
 it, the three religious bodies with whcm 
 they had entered into union. Consequently 
 the learned Justice, though differing in 
 opinion from his brethren Dorion, C.J 
 and Monk, J., agreed with them in result. 
 
 Whether the Legislature of Quebec had 
 power to pass the Act 38 Vict., cap. 64, is 
 the question first requiring consideration, 
 because, if it be answered in the affirma- 
 tive, the case of the Appellant entirely fails 
 The determination of that question appears' 
 to their Lordships to depend upon the con- 
 struction of certain clauses in the British 
 North America Act, 1867. There is no 
 room, in the present case, for the applica- 
 tion of those ger eral principles of congtitu- 
 tional law, which were discussed by some 
 of the Judges of the Courts below, and which 
 were founded on in argument at the bar 
 There is really no practical limit to the 
 authority of a supreme legislature except 
 the lack of executive power to enforce its 
 enactments. .But tbe Legislature of Quebec 
 18 not supreme ; at all events, it can only 
 assert its supremacy within those limits 
 y wh.ch have been assigned to it by the Act 
 of 1867. 
 
 The Act of the Parliament of the 
 Province of Canada, 22 Vict., cap. 66, was, 
 alter the passing of the British North 
 America, Act 1867, continued in force with- 
 in the provinces of Ontario and Quebec, by 
 virtue of Section 129 of the latter statute, 
 which, mter alia, enacts that, except as 
 therein otherwise provided, all laws in 
 force m Canada at the time of the union 
 thereby affected, shall continue in Ontario 
 and Quebec as if the union had not been 
 made. Bat that enactment is qualified by 
 the provision that all such laws, with the 
 exception of those enacted by the Parlia- 
 ments of Great Britain, or of the United 
 Kingdom ot Great Britain and Ireland, siiall 
 be subject "to be repealed, abolished, or 
 ' altered by tbe Parliament of Canada, or by 
 tne Legislature of the re.spective province 
 " according to the authority of the Parlia-' 
 u ??,! Z."^^ ***** Legislature untier this 
 " Act. 1 ho powers, conferred bv this sec- 
 tion upon the Provincial Legislatures of 
 Ontario and Quebec, to repeal and alter the 
 
 statutes of the old Parliament of tho 
 i'rovince of Canada, art made precisely co- 
 extenHivu with tho powers of direct legis- 
 ati-.n with which these bodies are invested 
 by the other clauses of the Act of 1867 
 In order, therefore, to ascertain how far the 
 Provincial LeKislature of Quebec had 
 power to alter and amend the Act of 1858 
 incorporating the Board for the manage' 
 ment of the Temporalities Fund, it become! 
 necessary to revert to Sections 91 and 92 of 
 the British North America Act, which 
 enumerate and define the various matters 
 wiiicii are within the exclusive legislative 
 autiontyofthe Parliament of Canada, as 
 well as those in relation to which the 
 legislatures of the respective provinces 
 have the exclusive right of making laws. 
 If It could be established that, in the 
 absence of all previous legislation on the 
 subject, the Legislature of Quebec would 
 have been authorized by Section 92 to pass 
 an Act in terms identical with the 22 Vict 
 cap. 66, then it would follow that the Act 
 of the 22ud Vict, has been validly amended 
 ^y ??, 38 Vict, cap. 64. On the other 
 liand.if the Legislature of Quebec has not 
 derived such power of enactment trom Sec- 
 92, the necessary inference is that the 
 legislative authority required, in 
 terms (f Section 129, to sustain its 
 right to repeal or alter an old law 
 of the Parliament of the Province of 
 Canada, is m this case awantiog, and that 
 the Act 38 Vict., cap. 64, was not intra viret 
 of the Legislature by which it was passed. 
 The general scheme of the British North 
 America Act, 1867, and, in particular, the 
 general scope and effect of Sections 91 and 
 92, have been so fully commented upon by 
 this Board in the recent cases of <« the Citi- 
 "zen Insurance Company of Canada v Par- 
 " sons," and " the Queen Insurance Con- 
 "pany v. Parsons," that it is unnecessary to 
 say anything further upon that subject. 
 Iheir Lordships see no reason to modify in 
 any respect the principles of law upon 
 which they proceeded in deciding these 
 cases ; but in determining how far these 
 principles apply to the present case, it is 
 necessary to consider to what extent the 
 circumstances of each case are identical or 
 similar. 
 
 The case of "The Citizen Insurance 
 Company of Canada w. Parsons" comes near- 
 est, m its circumstances to the present, as 
 in that case the Appellant Company was 
 incorporated by, and derived all its 'statu- 
 tory rights and privileges from an Act of 
 the Province of Canada, whereas "The 
 Queen Insurance Company" was incor- 
 porated under the provisions of the British 
 Joint Stock Companies Act, 7 and 8 Vict 
 
 can. 110, Tn hnth ^a„^- ^ ** 
 
 *r.^jvo vuu yai, 
 
 miiy oi aa 
 
ent of tbs 
 recisely co- 
 irect legis- 
 re iu vested 
 Lck of 1867. 
 liow far the 
 lebec bad 
 Let of 1858, 
 le manage • 
 it becomes 
 I and 92 of 
 ict, which 
 U8 matters 
 legislative 
 Canada, as 
 which the 
 provinces 
 king laws, 
 kt, in the 
 on ou the 
 )ec would 
 92 to pass 
 e 22 Vict., 
 at the Act 
 amended 
 the other 
 ec has not 
 trom See- 
 that the 
 red, in 
 istain its 
 old law 
 )vince of 
 and that 
 intra virea 
 a passed, 
 ish North 
 ular, the 
 as 91 and 
 upon by 
 the Citi- 
 da V. Par- 
 ice CoEj- 
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 subject, 
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 tent the 
 atical or 
 
 J 
 
 Act of the Legislature of OnUrio was im- 
 peach«d on the ground that its provisions 
 yrt^Ti- ultra viret of a. provincial legislature 
 and were not binding unleas enacted by the 
 Parl.ament of Canada. It wa« contended 
 
 Z?/h /'?''* ^"""'° Insurance Company 
 that the statute complained of was invalid 
 in respect that it virtually repealed certain 
 rights and privileges which they enjoyed by 
 virtue of their Act of Incorporation. ^'iTa^ 
 contention was rejected, and the decision 
 m that case would be a precedent fatal to 
 th. contention of the Appellant, if the pro- 
 vis onsofthe Ontario Act, 39 Vet cao^l 
 and the Quebec Act, 38 Vict., cap.*64 'were 
 of the same or substantially the same char- 
 acter But upon an examination of these 
 two statutes. It becomes 8t once apparent 
 that there is a marked difference in the 
 character of their respective enactments, 
 ihe Ontario Act merely prescribed that cer- 
 tain conditions should attach to everv 
 policy, entered into or in force, for insuring 
 property situate within the province against 
 the risk of fire. It dealt with all coipora- 
 fa^ons companies, and individuals alike who 
 might choose to insure property in Ontario, 
 -itdid not interfere with their constitution 
 or 'tatu», but required that certain reason, 
 able conditions should be held as inserted 
 in every contract made by them. The 
 t^r;Jv'H^'*' 38 Vict,, cap. 64, on the con- 
 traiy, deals with a single statutory trust 
 and interferes directly with the constitution 
 and privileges of a corporation created by 
 an Act of the Province of Canada, and hav- 
 ing its corporate existence and corporate 
 
 !".!.^?n .i''*o^^'''^'°^« «^ Ontario, as well 
 as m the Province of Quebec. The rro- 
 fessed object of the Act, and the effect of 
 Its provisions is, not to impose conditions 
 •n the dealings of the corporation with its 
 funds within the Province of Quebec, but 
 to destroy, in the first place, the old cor- 
 poration, and create a new one, and, in the 
 second place, to alter materially the class 
 of persons interested in the funds of the 
 corporation. 
 
 According to the principles estabfishe.l 
 by the judgment of this Board in the cases 
 already referred to, the first step to be 
 
 aV* ;.?^ »* '''^'^ ^ **^«* "'« validity of an 
 Act of the Provincial Legislature, is to con- 
 sider whether the subject matter cf the Act 
 falls within any of the classes of su'oiects 
 enumerated in Sec. 92. If it does not, then 
 
 then these lurther questions may ari^e, viz 
 whether, notwithstanding that it !« so, the 
 subject of the Act does not also fall with- 
 in one of the enumerated classes of sub- 
 
 ' jects in Sec. 91, and whether the power of 
 
 " the Provincial Legislature in or 
 
 " thereby overborne." 
 
 noi 
 
 Does then the Act 38 Vict., c. 64, fall 
 within any of the classes enumerated in 
 see. 92, and thereby assigned to the Pro 
 vincial Legislatures ? Their Lordships are 
 of opinion that it does not; and eonse- 
 quently that its enactments are invalid 
 and that the constitution and duties of the 
 Hoard for manuKing the Temporalities 
 J^ und must still be regulated by the Act of 
 1 858. 
 
 *u I' .^^Is contended for the Respondents 
 that the Quebec Act of 1875 is within one 
 or more of these three classps of subjects 
 enumerated in Sec. It2,— 
 
 •'(7). The establishment, maintenance, 
 and management of hospitals, asylums, 
 charities, and eleemosynary institutions in 
 and for the province other than marine 
 hospitals." 
 
 " (11). The incorporation of companies 
 with provincial objects." 
 
 "(13). Property and civil rights in the 
 Province" 
 
 The most plausible argument for the Ra- 
 spondent was founded upon the terms of 
 Class (13), but it has failed to satisfy their 
 Lordships that the statute impeached by 
 the Appellant is a law in relation to pro- 
 perty and civil rights within the Province 
 of Quebec. 
 
 The Quebec Act of 1875 does not, as has 
 already been pointed out. deal directly with 
 property or contracts affecting property, 
 but with the civil rights of a corporation 
 and of individuals, present or future, for 
 whose benefit the corporation was created 
 and exists, if these rights and interests 
 were capable of division according to their 
 local position in Ontario and Quebec re- 
 spectively, the Legislature of eac h Pro- 
 vince would have power to deal with them 
 so far as situate with the limits ©f its au- 
 thority. If, by a single Act of the Domin- 
 ion Parliament, there had been constituted 
 two separate corporations, for the purpose 
 of working, the one h mine within the Pro- 
 vince of Upper Canada, and the other a 
 mine in the Province of Lower Canada, the 
 Legislature of Quebec would clearly have 
 had authority to repeal the Act so far as it 
 related to the latter mine and the corpora- 
 tion by which it wad worked. 
 
 The Quebec Act 38 Vict., cap. 64, does 
 not profess to repeal and amend the Act of 
 1858, only in so far as itrs provisions may ^ 
 apply to or be operative within the Pro- 
 vince of Quebec, and its enactments are ap- 
 parently not framed with a view to unysuch 
 limitation. The reason is obvious, and it 
 18 a reason which appears to theii Lord- 
 ships to be fatal to the validity of the Act. 
 I he corporation and the corporate trust. 
 mo matters to which its provisions relate! 
 are m reality not divisible according to th© 
 
limits of proTincial authority. In evnry 
 case whore an Act applirabla to the two 
 ProvincoH of Qiicboc and Ontario, can now 
 be validly rep»'ali!d by one of them, the re- 
 RultmuHt be to luavu the Act in full vigour 
 within the other Province. But, in the 
 preHent case, the IcgiHiation oi Quebec 
 must necessary affect the riglitsand status 
 of the corporaticn as previou.sly existing in 
 thfr Province of Outtirio, as well as the 
 rights and interefts of individual corpora, 
 tors in that Province. In addition to that, 
 the fund administered by the Corporate 
 Board, under the Act of 18r>8, is held in per- 
 petuity for the benefit of the ministers and 
 members of a Church having its local situ- 
 tion in both Provinces, and the proportion 
 of the fund and its revenue falling to either 
 Province is uncertain and fluctuating, so 
 that it would be impossible for the Legisla- 
 ture of Quebec to appropriate a definite 
 share of the corporate funds to their own 
 Province without trencliing on the rights 
 of the corporation in Ontario. 
 
 These observations regarding Class (13) 
 apply with equal force to tlie argument of 
 the Bespondents founded on Classes (7) 
 and (11). Even assuming that the tem- 
 poralities fund might be correctly described 
 as a " charity;' or as an "eleemosynary in- 
 stitution," it is not in any sense established, 
 maintained, or managed " in or for" the 
 Province et Quebec; and if the Board, in- 
 corporated by the Act of 1858, could bo 
 held to be a " company " within the mean- 
 ing of Class (11), its objects are certainly 
 not provincipl. 
 
 The Respondents further maintained that 
 the Legislature ot Quebec had power to 
 pass the Act of 1875, in rtspect of these 
 special oircumstances, (1) that the domi- 
 cile and principal ofitice of the Temporali- 
 ties Board is in the city of Montreal ; and (2) 
 that its funds also are held or invested within 
 the Province of Quebec. These facts are 
 admitted oh record by Appellflnt, but they 
 do not affect the question of legislative 
 power. The domicile of the corporation is 
 merely forensic, and cannot alter its statu- 
 tory constitution as a Board in and for the 
 Provinces of Upper Canada and Lower Can- 
 ada. Neither can the accident of its funds 
 being invested in Quebec give the Legis- 
 lature of that province authority to change 
 the constitution of a corporation with which 
 it would otherwise hare no right to inter- 
 feie. When funds belonging to a corpora- 
 tion in ^Ontario are so situated or invested 
 in the frovin 'C of Quebec, the Legislature 
 ot Quebec may impose direct taxes upon 
 them for provincial purposes, as authoiized 
 by Section 92 (2), or may impose condiiions 
 upon the transfer or nali^ation of such 
 lUudi i but that tu6 Quebec; Lcglblaturo 
 
 shall hare power also to conflscate these 
 funds, or any part of them, for provincial 
 purposes, is a proposition for which no 
 warrant is to bo found in the Act of 1867. 
 
 Last of all it was argued for the Respond- 
 ents that, assuming the incompetency of 
 either provincial Legislature, acting singly, 
 to interfere with the Act of 1858, that 
 statute miuht bo altered or repealed by 
 their joint and harmonious action. The 
 argument is based upon fact, because, in 
 the yeai 1874, the Legislature of Ontario 
 paased an Act (38 Vict., cap. 75), autho- 
 rizing the union of the four Churches, and 
 containing provisions in legard to the tem- 
 poralities fund and its Board of Manage- 
 ment, substantially the same with those ot 
 the tjuebec Act, 38 Vict , cap. 62, already 
 referred to. It is difficult to understand 
 how th ) maxim juncta Juvant is applicable 
 here, seeing that the power of the pro- 
 vincial Legislature to de.-troy a law of the 
 old Province of 'lanada is measured by ita 
 capacity to reconstruct what it has destroy- 
 ed. If the Legislatures of Ontario and 
 Quebec were allowed jointly to abolish the 
 Board of 1858, which is one corporation in 
 and for both provinces, they could only 
 create in its room two corporations, one of 
 which would exist in and for Ontario and 
 be a foreigner in Quebec, and the other of 
 which would be foreign to Ontario but a 
 domestic institution in Quebec. Then the 
 funds of the Ontario corporation could not 
 be legitimately settled upon objects in the 
 province of Quebec, and as little could the 
 funds of the Quebec corporation be devoted 
 to Ontario, whereas the tempomlitiea fund 
 falls to be applied either in the province of 
 Quebec or in that of Ontario, and that in 
 such amounts or proportions as the needs 
 of the Presbyterian Church of Canada in 
 connection with the Church of i^cetland, 
 and of its ministers and congregations, may 
 from time to time require. The Parlia- 
 ment of Canada is, therefore, the only 
 Legislature having power to modify or re- 
 peal the provisions of the Act of 1858. 
 
 On the assumption thai the Legislature' 
 of Quebec had not power to alter the pro- 
 visions of the Act 22 Vict., cap. 66, the 
 Respondents still maintain that the Appel- 
 lant cannot prevail in the present action, in 
 respect that be has not sufficient interest to 
 entitle him to sue, and that, even if he has 
 such interest, he is barred from challenging 
 the Act of 1875, by the resolutions of the 
 majority of the Synod, which are said to be 
 binding upon him. 
 
 As regavds the first of these objections, it 
 is true that the Appellant's right to an an- 
 nuity from the temporalities fund is reserv- 
 ed in its integrity by the Act which he 
 impugns, and kis own pecuniary iuteiesu 
 
aro, thorflfore, not aflfected by its proviHiins. 
 But the Appollfttit in not a more annuitant, 
 and his riBfht toan annmU allowance dooa 
 not constitute hit only connoction with the 
 fund. He iH likewiMe one of the cotnrnut- 
 orH— one of the perHona by whom the fund 
 wan contributed for the pu. pnsoH of the Act 
 22 Vict., cap. 66— and in that cipacity ho 
 has a plain intereHt, and consequent right, 
 to insist that the fund shall bo administered 
 la strict accordance with law. 
 
 The second objection is derived from the 
 resolutions in favour of union carried by the 
 majority of the Synod of the Presbyterian 
 Cliureh of Canada, in connection with the 
 Church of Scoi land, upon the 14th June 
 1875. The Quebec Act 38 Vict., cap. 6A, 
 deals with the temporalities tund in con- 
 formity with these resolutions ; and it is 
 the coiitHntion of the ilespon 'cuts that the 
 Appellant is bound by the resolutions, and 
 cannot, therefore, impeach the Statute 
 which gives etfoct to them. That is a startl- 
 ing proposition. If the Legislature of Que- 
 bee was incompetent to enact the Statute of 
 1875, it is not easy to understand how the 
 synod could have power, either directly or 
 indirectly, to validate that Act, or to set 
 aside the enactments of 22 Vict., cap. 66. 
 The Respondents do not, indeed, allege that 
 the synod was possessed ot legislative 
 powers, but they assert tliat the 
 majority, by resolving that the 
 fund, settled under the Act 22 Vict., 
 cap 66, should in future be administered ac- 
 cording to a scheme inconsistent with the 
 provisions ot that Act, bound all its mem- 
 bors to acquiesce in that new course of 
 administration, and to abstain from enforc- 
 ing the Statute law of the land. It may be 
 doubted whether a Court of law would 
 susvuin such an obligation, even it it were 
 expressly undertaken ; but it is unnecessary 
 to discuss that point, because their Lord- 
 shipsareof opinion that the Respondents 
 have failed to establish that the Appellant, 
 as a member of the Presbyterian Church in 
 connection with the Church of Scotland, 
 undertook any obligation to that effect. 
 
 Whether the Appellant is bound, as 
 alleged by the Respondents, is, in this case, 
 a question relating exclusively to civil 
 rights, and must, therefore, be dealt with as 
 matt«r ot coi- tract between him and the 
 synod or church of which he was admitted- 
 ly a member at the time when the resolu- 
 tions in favour of union were carried. In 
 the case of a non-established Presbyterian 
 Church, its constitution, or in other words 
 the terms of the contract under which its 
 members are associated, are rarely embodied 
 in a single docu:*ient.and must, in part at 
 least, be gathered from the proceedings and 
 pra«tice of its judicatories. Every per =-00 
 
 who becomes a member of a Church so con 
 stitutod must bo hold to have satisfied him- 
 solf in regar.l to the proceeding;! and prac- 
 tice of its Cou.ts, and to havo aKroed to sub- 
 mit to (ho precedents which those establish. 
 I'ho Hospondents were, therefore, justified 
 in referring to the Minutes of the Synod 
 from 1831 to I87r», for the purpose of show- 
 ing tlie extent of tlio power vested in majo- 
 rities by the coustitulion of the Church . 
 The Minutes, which were founded upon by 
 Counsel for the Respondents, afford abun- 
 dant evidence to the effect tliat, in all mat- 
 tors wliich the Synod was competent to 
 deal with and determine, the will of the 
 raajoiityas expressed by their vote was 
 binding upon every member of the Synod, 
 a proposition which the Appellant did not 
 dirtpuie. iJut tiiey contain nothing what- 
 ever to show that, in cases where the admin- 
 istration of Church property was regulated 
 by htalute, the Synod ever asserted its right 
 to sot aside that legal course of administra- 
 tion, and to restrain dissentient members 
 trom challenging any departure from it. 
 
 Their Lordships are, therefore, of opinion 
 tiiat the Appellant is entitled to have it 
 declared that, notwithstanding the provi- 
 sions of the Quebec Act of 1875, the consti- 
 tution of the Board and the administration 
 of tlio Temporalities Fund are still govern- 
 ed by the Canadian Act of 1858, and that the 
 Respondent Board is not duly constituted 
 in terms of that Act ; and also to have an 
 injunction restraining the Respondents 
 from paying away or otherwise disposing of 
 either the principal or income of the fund. 
 The Appellant, in his application 10 the 
 Court below, asks a declaration to the effect 
 that the fund in question is held by the 
 Respondents, « in trust, for the b inetit of 
 " the Presbyterian Church of Canada, in 
 " connection with the Church of Scotland, 
 " and lor the benefit of the ministers and 
 " missionaries who retain their connection 
 " therewith, and who liave not ceased to bo 
 " ministers thereof, and lor no other pur- 
 " pose whatever." It is obviously inexpe- 
 dient to make any declaration of that kind. 
 It would bu a mere repetition of the lan- 
 guage of the Act of 1858, by which the 
 trust is regulated, and would decide nothing 
 as between the parties to the present suit. 
 The Appellant also seeks to have it de- 
 Glared that six reverend gentlemen who, at 
 and prior to the Union of 1876 were mem- 
 bers of the Presbyterian Church of Canada 
 in connection with the Church of Scotland, 
 have ceased to possess that character, and 
 that they have no right to the benefits of 
 the Temporalities Fund ; and he concludes 
 lor an injunction against the Respondent 
 
 1 i.n.i.g csUj- payiucus, tu lUUUI. 
 
 Their Lordships are of opinion that theia 
 
 A 
 
8 
 
 •rn matteri which cannot be competentlj 
 de< ided in the present action. Their deci- 
 sion depends upon the answer to be gi /en 
 to the question, which Church or anKre^Hte 
 of Churches is now to be consldereci as 
 hoing or repre.ienting the Presbyterian 
 Cliurch of Canada in connect'on with the 
 Church of Scotland, within the meaning of 
 the Act 22 Vict., cap. 65 ? But the two 
 Churches which appear from the record to 
 have rival claimH to that position are not 
 reprosented in this action ; and, of the six 
 ministers whose pecuniary interests are as- 
 sailed by the Appellant, he has only called 
 one, the Rev. Dr. Cook, as a UosponHent, 
 That qtieHtion between the Churches must 
 be dutorminod somehow before a constitu- 
 tional Board can be elected ; and, unless 
 the Dominion Parliament intervenes, there 
 will bo ample ot)portunity for new and pro- 
 tracted litigiition. It cannot be determined 
 now, bocaiiHe the Appellant han not asked 
 any oider from the Court in reg ird to the 
 formation of the new Board, and has not 
 
 made the individuals and religious bodies 
 interested parties to this cause. 
 
 Hubslantial success being with 
 Appellant, he must have bis 
 as against the Kespondento. 
 their Lordships are of oplaioa 
 neither the Respondeuti own costs, 
 
 tb« 
 
 cost! 
 
 aor 
 
 thoje in which they are found liable to the 
 Appellant, outrht to como out of the TrusI 
 Fund, which they are holding and admia> 
 isterin« without legal title. The Appel- 
 lant's costs muNt therefore be paid by the 
 members of the Respondent Corporation as 
 individuals. 
 
 Their Lordships will, accordingly, 
 humbly advise Her Majesty that the Judg- 
 ments under appeal ought to be reversed, 
 and that the cause should be remitted to 
 the Court of Queen's Bench, Lower Canada, 
 with directions to that Court, to give effect 
 to the declarations recommended by this 
 Board, and also to issue in the Appellant's 
 favour an injunction and decree for costs as 
 directed by this Board. 
 
 (Printed at the office qr 'he Montbsal HKLAliD.) 
 

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 ■* " 'Yea' on condition that the proposed Union does not annul their existence as a separate and distinct congregation in the United 
 
 Body ; but ccmtinues and confirms to them all the rights and privileges of a congregation in the new denomination, which they 
 
 as such ])08Bess and enjoy in connection with the Church of Scotland." 
 
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 burdened with the same." 
 « One Elder dissents from III., " because (1) the proportion of said Fund appropriated to the Widows' and Orphans' Fund is altogether 
 
 too small, and (2) before the final disposition of this Fund shall take place and the appropriations to the various objects specified 
 
 made, the United Church shall have raised an equal proportionate sum." 
 
 - " Becaute, in present circumstances, it is deemed unadvisable to complete the proposed Union. " 
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 " III. "29 " to 20 
 
 
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