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Les cartes, planches, tableaux, etc., peuvent dtre filmds d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul cliche, il est film6 d partir de I'angle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mithode. n 32 X 1 2 3 1 2 3 4 5 6 q7\ C ^ BATHURST SCHOOL CASE. THK JUDGMENT OF HIS HONOR, MR. JUSTICE BARKER, nEl.IVERED IN TFIE SUPREMK COURT IN EQUITY, OK NEW BRUNSWICK, 17th MARCH, 1806. J. & A. McMillan, ST. JOHN, N. B. ^«^^'- / BATHURST / SCHOOL CASE. THE JUDGMENT OF HIS HONOR, MR. JUSTICE BARKER, DELIVERED IN THE SUPREME COURT IN EQUITY, ' OF NEW BRUNSWICK, 17th MARCH, 1896. J. & A. McMillan, ST. JOHN, N. B. |(n (lie ^ii|ircmc O^oiirt in llquilg OF NEW BRUNSWICK. ROGERS, ET AL. V, THE TRUSTEES OF SCHOOL DISTRICT No. 2, OF BATHURST. JUDGMENT OF MR. JUSTICH BARKER. Delivered March i^th, i8g6. Argument was heard December lo, ii, 12, 1895. C. N. Skinner, Q. C, and George W. Fowler, for the Plaintiffs. L. A. CuRREY, Q. C, and R. A. Lawlor, for the Defendants. Barker, J. The Bill in this case alleges that the Plaintiffs William Rogers, Andrew Norman DesBrisay, Thomas Edwin Carter, John Alex- ander and Samuel Gammon are seized in fee as joint tenants ofa lot of land in the Town of Bathurst, in the County of Gloucester, and that they hold the same in trust for the sole use of Fowler Loyal Orange Lodge, No. 123, and to permit that lodge to use and possess the said land, and to erect a building thereon, to be used as an Orange Hall or otherwise as the lodge might deter- mine. That a building was erected on the lot, which is used as proposed. That the Defendants in the year 1893 made an as- sessment upon the School District No. 2, to the amount of |i,6oo for district school purposes, of which sum $10.80 was laid and levied on the land held by the Plaintiffs. That in the year 1894 the Defendants made a further assessment for district school purposes upon the said district for the sum of over $1,000, of which sum $10 was laid and levied on this lot held by the Plain- tiffs. That there are over fifty rate-payers in the district, of which a small majority are Roman Catholics, though the largest amount of assessable property in the district is owned by I'rotestants. That the Defendants for a period exceeding five years, have con- ducted the common schools in District No. 2, and enforced the assessment laid on the rate-jjayers for that purpose, and that they intend to continue conducting the schools and levying the assess- ments necessary for the purpose in the future as they have during the past five years. The Hill in the 8th, 9th and loth sections alleges that the Defendants have not, during the past five years, conducted the schools as non-sectarian schools, that they are not now so conducting them, and that it is their intention to con- tinue to conduct them as sectarian schools. In section 14 it is alleged, that during the past five years and upwards, the Defen- dants conducted and maintained the schools of the district " in the interests of the Roman Catholic Church, and for the purpose and with a view and intention to promote and secure the prosper- ity of the said the Roman Catholic Church, and assist in the spreading, maintaining, inculcating and securing the supremacy of the teachings of the religion and doctrines of said church, and imbuing the minds of the children of Protestant parents being taught in said School District No. 2, in said schools, with the doctrines, policy and teachings of said church, and to bring the children of such Protestant parents under the influence of the religion, doctrines and modes of belief taught by the religious teachers and priests, bishops and ecclesiastics of said church." In the 15th section it is alleged that the Defendants are now conducting these schools for the same purposes and with the same intention as is set out above; and in section i6 it is alleged that the Defendants purpose and intend to continue conducting and maintaining these schools for the same purposes and with the same intention. The Bill then goes on to allege specific facts to show how the schools have been and at present are carried on as sectarian schools. These will necessarily be more fully stated when I come to deal with the evidence, but they may be briefly stated thus: (i) The renting by the Defendants of the Convent school house from the Bishop of Chatham, which building it is alleged " is a sectarian school house and sectarian building, built by the ecclesiastical authorities of the Roman Catholic Church for the purposes of promoting the interests of the said church and teaching therein the religion and doctrines of the said church to such pupils as may attend school therein," and it is alleged in this connection that Protestant parents are compelled to send their children to these schools taught in the Convent school house, or otherwise provide for the education of their children at their own expense in addition to payinji[ their school taxes. (2) The employment by the Defendants, at the instance and request, as is alleged, of the Roman Catholic Bishop of Chatham and other ecclesiastics of the Roman Calhulic Church, of Sisters of Charity as teachers in these schools, whicii Sisters it is alleged "are a body of persons and an 'order' in connection with the Roman Catholic Church, and part of such church for the purpose of teaching the religion of said church, set apart and separate from the work! in all senses except for teaching, and it is the duly of said Sisters, under the guidance of the rules of this order and the ecclesiastical authorities of said church, to teach both the elements of a secular education, and in connection therewith, and at tho same time a religious education as well." (,V) The wear- ing by the .Sisters the garb or dress of their order while teaching "to denote their calling and connection with the said Roman Catholic Church, and that they are so set apart and a part of the order so belonging to the said Roman Catholic Church, and assisting in the teaching of the doctrines and religion thereof." (4) That these Sisters are not known or called by their ordinary names, but " by names that designate them as a religious and teaching order in said church, and as p part of the intellectual force of s.-.ld church for the purpose of advancing, spreading and maintai'img the religion of the said Roman Catholic Church in said School District No. 2." (5) That the Sisters, while em- ployed as teachers, are subject to the control of the Superiors of their order and the ecclesiastical authority of the Priests and Bishops of the Roman Catholic Church, and that the teaching of the Sisters is directed by such control and authority. (6) That the salaries paid to the Sisters under their contract'' with the Defendants, though nominally theirs, in reality bt oiig to their order, by whom they are maintained under the direction of the ecclesiastical authorities of the Roman Catholic Church. (7) That it was agreed by the Defendants and the Roman Catholic Bishop, when the arrangement for the employment of the Sisters was originally made, that the Bible should be excluded from the schools taught by them, and that in pursuance of such agreement the Bible has not been read. (8) That the Defendants permit the Priests and other ecclesiastical authorities of the Roman Catholic Church to interfere in the conduct, teaching and man- agement of the schools, and that " these schools are carried on under the supervision, dominance and will of the Priests attending to and looking after the religious interests of the Roman Catholic 6 Church in the school district." (9) That the Defendants permit the Sisters to teach the religion of the Roman Cathohc Church, and the prayers of that church, to be used and offered during school hours. The Bill then alleges that the renting of the Con- vent school rooms, the alleged arrangement with the Bishop as to the exclusion of the Bible, and the employment of the Sisters as teachers, were all done with the design of maintaining sectarian teaching in the schools, and " with a view." as it is expressed in section 30, " and for the purpose of inculcating, teaching, spread- ing and enforcing the religion and doctrines and teachings of the Roman Catholic Church." It is also alleged in the Bill that as a result of the manner in which these schools had, by the permis- sion of the Defendants, been conducted, the Protestant children were not only prevented from attending them, but the Protestant rate-payers had been compelled to sustain a private non-sectarian school in addition to paying the taxes levied on them. The specific relief prayed for was as follows : " That the Defendants be restrained from renting said Roman Catholic Convent school buildings for school purposes in said School District No. 2, and from conducting said schools, or any of them, therein ; and from engaging and employing said 'Sisters ' as teachers of said schools, or any of them, in said School District No. 2; and from allowing the doctrines and religion of the Roman Catholic Church being taught in said schools, or in any of said schools, in said District No. 2 ; and from allowing the prayers of the said Roman Catholic Church being used in said schools, or any of them, in said School District No. 2 during the school hours, and from conducting said schools, or any of them, in said School District No. 2 as sectarian schools, or in any way other than according to law." It is unnecessary for me to refer particularly to the answer, for beyond correcting some errors in the Bill as to the assessment and about which there is no dispute, it is simply a denial of the substantial facts put forward and an allegation that the Defend- ants are carrying on these schools according to law. Before discussing the main questions involved in this case, there are two preliminary objections which it is as well to dispose of. It was contended that this Bill should have been filed by the Plaintiffs, on behalf of themselves and others in the same interest, and second, that the suit should have been in the name of the Attorney General ex relatione. As to the first objection, it is to be remarked that these Plaintiffs have neither alleged nor proved any damagS or invasion of right peculiar to themselves, and not common to all others holding the same views ; and the averment of substantial injury is not that 'he Plaintiffs, but that the Protestants had been compelled by the Defendants' action to support a private sectarian school. I intimated on the argument that the objection if well taken could be met at the hearing by an amendment, and if the Plamtiffs desire to amend they are at liberty to do so. Reese River Silver Minine; Co. v. Atwell, 7 Eq. 347. The second objection is I think fatal to this suit. In Evan v. The Corporation of Avon, 29 Bea. 14^, the M. R. says that where there is a public trust for the benefit of all the inhabitants, the proper form of suit in the event of a breach of trust is by an infer- mation by the Attorney (icneral at the instance of all or some of the persons interested in the matter. The whole of the money collected by the Defendants for school purposes and of which the amount paid by the Plaintiffs is a part, is held in trust for the whole body of inhabitants entitled to school privileges in the district, and not for any parcicular number or class. Neither can It be said that the interests of the Crown are not involved. Con- sidering the nature of the school regulations ; the powers and position of the Board of PZducation by whom they are made, and the various other ways in which the rights and interests of the Crown are mvolved in the administration of the School Act as called in question in this suit, and which will become more apoar- ent as the discussion proceeds, this case is one in which in my opinion the Attorney General should be a party. There is however, I think, no objection even at the hearing to convert a Bill mto an information by the Attorney General by way of amendment, if the Attorney General consents. Caldwell M. Pagham Harbour ReclamaHon Co., 2 Ch. Div. 221. It is, however, desirable for the convenient determination of this case by a Court of Appeal that I should pass upon the facts and express my opinion on the case upon its merits. Before doing so it will be convenient lo see upon what principle this Court acts where an injunction restraining the action of a public body is asked for as here. In The Attorney Generals. The Mayor of Newcastle-upon- Tyne, 23 Q. B. D.492, Lindley L. J. says • " It has been decided that an action at law may be maintained against a municipal corporation upon a contract under its corporate seal •and that judgment \n such an action may be recovered against the corporation, even although there may be no funds or other property properly applicable to satisfy the judgment. On the other hand it is clearly settled that a corporation will b- restrained by injunction from misapplying its corporate property; and that a municipal corporation will be restrained from applying its borough fund to purposes not authorized by the Municipal Cor- porations Act or by some other Act of Parliament. The same prmciple applies to other funds obtained under the provisions of other Acts of Parliament for purposes defined by those Acts." Attorney General v. Aspimvall, 2 M. & C. 613. Attorney General v. Mayor of Norwich. 2 M. & C. 406. Now there is no difficulty here in determining as to the Delendants' intention, for they admit that it is their intention to appropriate the school funds in their hands in carrying on and maintaining these scliools as they have done in the past, not wilfully or with any such improper design as that with which the Plaintiffs charge them in their Bill ; but because such a course is right and lawful. To enab'e the Plaintiffs to succeed they must therefore establish, that the schools in question as thev are being earned on are not non-sectarian schools, and that in applying school funds raised by assessment on the property of Plaintiffs and other rate-payers for tiie support of such schools, they are misappropriating these funds, and so guilty of a breach of trust. There are, of course, other consid ..adorts by which this Court is governed in granting or withholding the extraordinary remedy asked for, but these will be dealt with more conveniently later on. From the outline of the Bill which I have given it will be seen that the Defendants are charged with having done all that they have done in reference to these so called Convent schools in Bathurst since 1890, /. e., renting the class rooms in the Convent building, employing the Sisters as teachers, allowing the use of tile rooms for religious exercises of a sectarian character before and after school hours and other acts of a similar kind, with the deliberae design, as the Bill states it, " of inculcating, teaching, spreading and enforcing tiie religion, doctrines and teachings of the Roma.i Catholic Church," or as Mr. Fowler, with somewhat less formality put it on the argument, with the intention of using the School Act as a mere cover for carrying on schools for religi- ous teaching that would be in fact and effect completely under the control of the church and in which the authority of the Trustees would be a mere shadow while the substance remained with the Priest. I have given the evidence on this branch of the case the most careful consideration, all the more so because I • knew that the allegation in the Bill had been prepared by those to whom the facts in their minutest details must have become known from the exhaustive investigalion made in 1893 by the present Lieutenant Governor when a member of this Court, and I therefore assumed no evidence likely to sustain the allegation had 9 been overlooked. I do not know that it is material, to this case whether any sucli design existed or not, provided no attempt was ever made to carry it into effect; or, if made, that it failed alto- gether m accomplishing its object. I can only say that in my opmion the evidence entirely fails in proving any such design or mtention as that alleged against the Defendants, either on their part or that of any one else who took part in the transactions. It IS disproved by every witness put on the stand who had any knowledge of the subject and was questioned about it ; and unless I am to consider their positive assertions as altogether over- balanced by surrounding and attendant circumstances I must hold tins part of the Plaintiffs' Bill as disproved. What are these circumstances ? The evidence shows that about the year 1 864 the Sisters of Charity— members of the same order as tl- e now in the employ of the Defendants— commenced teaching . Bathurst Village, a district near to Bathurst Town, but separate and distinct from It. Thougii they resided in the village, they taught also in the town, occupying rooms in a building which had been pur- chased Irom one Baldwin, and been fitted up for the purpose This arrangement continued until May, 1871. In the fall of that year, Sisters of Notre Dame came from Montreal and took charge of these schools, and so continued for about nineteen years, down to 1890, when the present arrangement was entered into. Soon after Father Barry's appointment as Priest in charge at Bathurst Town, finding the then existing arrangements inconvenient, he had additions made to the Baldwin property so that the Sisters could reside there as well as teach. This property, originally an hotel, but now converted into a Convent building and used for school purposes, is the building in which are the class rooms rented by the Defendants. Previous to the jjassing of the Common Schools Act in 1871, and which came into force at the beginning of ihe following year, the legislature had annually made special money grants to assist certain denominational schools-some sixteen in all are mentioned in the journals of the House of Assembly for 1871— and among them are these Bathurst schools. These special grants were then discontinued. Notwithstanding this the Roman Catholic inhabitants continued to support their Convent schools from 1871 to 1S90, and, in addition, to pay the school rates levied on them yearly, for general school purposes under the Act. It is of course, well known that the school law was distasteful to the Roman Catholic inhabitants of the Province. Its constitutionality was tested before the highest tribunals here and in England- assessments levied under it upon Roman Catholic rate-payers in 10 many instances could only be collected by resort to extreme mea- sures, and in many cases hese assessments were sought to be got rid of altogether. After the lapse of nineteen years, matters had very considerably changed— the school system had become one of the permanent institutions of the country— its advantages were apparent in the increased and marvellously improved school ac- commodation on all sides, and in the efficient and marvellously improved methods of teaching. A modus viveiidi has been found in St. John, and other places similarly situated, whereby the advantages of the public schools were being enjoyed by all creeds apparently without friction. Besides this the Roman Catholics in the town of Bathurst were finding the support of the Conventual school in addition to their general school tax a somewhat onerous burthen— the Notre Dame Sisters had insuperable objections to teaching under the School Act— their rules prohibited them even in their own schools from teaching boys, so these must necessarily go to the public schools; and in addition to everything else, they demanded, in case they remained, a substantial advance in salary. These facts and circumstances seem to me to furnish ample reason for supposing that the Roman Catholics of Bathurst then con- cluded that it was their wisest and perha, s their only feasible course, " to come in under the Act," as the phrase goes, and place all the schools in the district under the control of the Trustees. This would give some ninety additional children for whom school accommodation must be provided by the Trustees, and if the Grammar School building was insufficient for the purpose, it does not seem an unnatural thing that the class rooms in the Convent building rendered vacant by the change, should be rented for the purpose. Neither does it seem to me an unnatural thing, that such additional teachers as might be required should be selected from the Sisters of Charity, as was actually done. Unlike the Sisters of Notre Dame, they had no objections to teaching mixed schools or teaching under the school law as some of them had been doing in Nova Scotia. Teaching was their profession, and their proficiency no one has called in question. The evidence in my opinion shows that in what was done in 1890, when the changes were made, there was an honest intention in all who took part in making them to adopt the school law, and stricdy and scrupu- lously to work under its provisions. At the same time it would be d ubting the sincerity of the Roman Catholics in what they had done during the previous nineteen years, to suppose that they were willing or for a moment intended to abandon any right or privilege to which they attached any importance, provided it 11 could be secured and enjoyed without infringing; the law or violating the regulations. If the law has been violated in any of its essential requirements, I see no reason whatever for suppos- ing it to have been done intentionally ; muchless can I find in the evidence, any warrant for saying that such violation was but the natural result of the dishonest design with which the Defendants and others are charged. The Plaintiffs' counsel at the hearing formulated nine propo- sitions upon which they relied. These, with two or three excep- tions, are substantially the same as the grounds put forward in the Bill, and they contain the reasons why the Plaintiffs say that these schools are sectarian schools. Now, what is a sectarian school ? I should say, one in which the particular religious tenets of some sect are taught. Chief Justice Leonard, in the case of Nevada v Halleck, i6 Nevada, 385, says : " It is what is taught, and not who are instructed, that must determine the question. If the instruction is of a sectarian character, the school is sec- tarian." Judge Dean, of the .Supreme Court of Pennsylvania, in the case of Spires v. The Treasurer, &c., of Gallitzin District, decided in 1882, says: "Therefore any school established and controlled by a sect which teaches or propagates the peculiar or special doctrines of that sect is a sectarian school." In Ex parte Renaud, i Pug. 273, the late Mr. Justice Fisher gives the follow- ing definition of a denominational school : " It is a school under the exclusive government of some one denomination of Christians, and where the tenets of that denomination are taught." These definitions are, perhaps, not altogether exhaustive, but they are sufficiently so for the purposes of this discussion. The Plaintiffs' first proposition is that the Defendant.s rented a building from the Roman Catholic authorities which is known as a sectarian building— is the home of the Sisters and a part of the church property, and as much a church building as a church edifice itself It is but right to say, not only as to the renting of these class rooms, but also as to some of the other matters com- plained of, it was not very strongly urged that of themselves they sectarianized the schools ; but the argument was that they were parts of a whole scheme or general course of conduct and action which did produce that result. These class rooms were held under a verbal arrangement from 1890 to 1892, subject, I think, to a nominal rent. In 1892 the Defendants entered into the following lease, which is still in force: " This Indenture made this first day of September, in the year of our Lord one thousand eight hundred and ninety-two, between 12 ^ the Reverend Thomas F. Barry, of Bathurst, in the County of Gloucester, and Province of New Brunswick, of the one part, and the Trustees of School District Number Two, of the Parish of Bathurst, in the County and Province aforesaid, of the other part. Witnesseth, that the said Thomas F. Barry does hereby lease and demise to the said Trustees of School District Number Two, in the Parish of Bathurst, the three class rooms in the upper flat, together with the hall, stairs, and the entrance thereto, in the buildmg in the Town of Bathurst, being an erection on the prop- erty formerly owned by the late Thomas Baldwin, and now in the custody of the said Reverend Thomas F. Barry. "To Have and to Hold from the day of the date hereof from year to year, the said Trustees p'aying to the said Reverend Thomas F. Barry the yearly rent of thirty dollars. " In witness whereof, the parties hereto have set their hands and seals the day and year first above written. " (Sgd.) Thos. F. Barry, Pt. [L. S.]. " (Sgd.) J. E. O'Brien, ^[Corporate Seal], " Sec. School District No. 2, Bathurst." It is not suggested that in these class rooms there was any- thing improper. The furniture belongs to the Defendants, and these rooms are fitted up in all respects as ordinary school rooms are. It is not easy to see how the name of a building, in a part of which are class rooms under lease to Trustees of Schools, and used for public school purposes, can render the schools sectarian. It is no more logical to say that schools like these in question are ex necessitate sectarian because the building in which Jiey are taught is used like liis is as a Convent, than it is to say that a school taught in a room fitted up for the purpose in a barn or a tempe-.ance hall is ex necessitate non-sectarian. Regulation 10 (I cite from the Manual of 1892) provides for the leasing of rooms in a building, and enacts that they " shall be under the super- vision and control of the Trustees, for school purposes, during school hours, and at such other times as the necessities of the school may require." It is well known that the St. John Board of School Trustees have had under lease and in use for school purposes for many years a building owned by the Trustees of the Leinster Street Baptist Church, and which is, in fact, structurally a part of the church edifice itself It has never been thought, so far as I am aware, that sucli an arrangement was not fu'.ly war- ranted by the Regulation I have just cited, or that the pecu'iar tenets of the Baptist denomination were being day by day taught 13 to the school children by the name, or the d sign, or the use of the building within which they were assembled. The second proposition is that the Defendants employed the Sisters of Charity as such, because they are Sisters of Charity and Roman Catholics, for church purposes, and to carry on the mission work of the church. I can scarcely think that the mission work of the Roman Catholic Church in Bathurst was so carelessly or inefficiently looked after, under Father Barry's supervision, as to require the aid of the Trustees of Schools, and induce a misappropriation of trust funds for the purpose. It is in no sense illegal to employ Sisters of Charity as teachers in the Public Schools. If they comply with the requirements of the law they are as much entitled to employment as any one else. And, in my opinion, where- a Sister of Charity is so employed, and discharges the obligation into which she has entered with the Trustees, it is mere imperti- nence in any Court to inquire whether she is or is not engaged in the mission work of her church at times when she is not engaged in school duties. As to anything like mission work or actual sectarian or religious teaching in the schools during school hours, it is absolutely and positively disproved by the teachers themselves and by every witness who was at all competent to speak on the point. It seems quite beside the question what the negotiations were which resulted in the employment of the teachers. Concede, if you choose, that their employment was directly due to the influence of the Bishop of Chatham and those acting with him, what does it amount to ? If it be legitimate to employ Sisters as teachers, surely it cannot be wrong in any one to use his influence to have them so employed. The important question. here is what they did while so employed. Did they impart sectarian teaching during school hours, or did they violate either the law or the regulations ? If not, what useful purpose • can be served by inquiring into all the previous negotiations or discussing whether, in entering into their teachers' contracts with the Defendants, they were influenced by this priest or that ? The contracts under which the Sisters are teaching are in the form provided in Regulation 2, the last clause of which provides that both parties to the contract shall be in all respects subject to the provisions of the chapter of the Consolidated Statutes relating to schools, and any Acts in amendment thereof and in addition thereto, and the regulations thereunder made by the Board of Education. If an action were brought by the teacher for her salary, what evidence is there to sustain as a defence that she had 14 violated either the Act or the Regulations, or that she was teach- ing a sectarian school ? I am unable to see any. The eighth and ninth propositions are similar in character to the second, and I can deal with them more appropriately here. It is put forward as the eighth point that the Sisters were engaged by the Defendants through the church authorities and the Superior of the Order, remained under their control, were supported by the Order, and could not accept independent employment, but their actions were subject to the direction of their Superiors. The ninth point is, that Protestants have a right to send their children to any and all of the schools of the district without having them brought under the influence of Roman Catholic teaching and sectarian education, as they necessarily are in these Convent schools. No one will dispute the existence of the right of Protestants substantially as stated in this last proposition. It begs the whole question however, because it assumes that the schools in question are sectarian, which is the whole point in controversy. It appears by the evidence that the Sisters of Charity now teaching, are members of an order, the Mother house of which is in Halifax. As a condition of membership they make certain renunciations of property, and of course agree to be governed by the rules made for the proper management of the order and its affairs. The salaries received by them are devoted primarily to their support and maintenance ; and any surplus goes into the general treasury of the order ; and where there is a deficiency the same treasury is drawn on to make it up. These facts were dwelt upon at some length as exemplifying how completely these Sisters were under ecclesiastical control, and how little under the control of tlie Trustees. The obvious answer to this is that by law the Trustees have precisely the same control over them as over any other teachers ; and the church authorities do not have, nor do they assume to have or exercise any control over these teachers as to their school work. In what possible way can the ultimate destina- tion of a teacher's salary, or its possible appropriation for religious uses, sectarian in their character, render the school taught by such teacher a sectarian school ? In the case of Hysing v. School District, etc., 164 Penn. State Reports, cited at the argument— a case idencical with this in all its material features— the Court say : "Nor does the fact that these teachers (Sisters of St. Joseph), contribute all their earnings beyond their support to the treasury of their order, to be used for religious purposes, have any bearing on the question. It is none of our business, nor that of these 15 Appellants, to inquire into this matter. American men and women of sound mind, and twenty-one years of age, can make such disposition of their surplus earnings as suits their own notions. We might as well, so far as any law warranted it, in- quire of a lawyer, before admitting him to the bar, what he intended to do with his surplus fees, and make his answer a test ofadmis ion." The Plaintiffs also attach much importance to the Defendants' action in reference to the school accommodation provided in 1890, as indicating a design to make concessions to the Roman Catholics wholly unwarranted, and involving the District in un- necessary expense. It is said that the Grammar School building was sufficiently large to accommodate all the school children ; and, with perhaps one additional teacher, the whole work could have been easily done. More than that, it is alleged that the class rooms in the Convent building are not, as the Trustees knew when they leased them, up to the requirements of the Regulations in the height of ceiling and other particulars. I am not convinced that the Grammar School building is ample for the purpose, but if I were, I should not consider it the province of this Court to supervise the action of the Defendants in any such particular. At all events, the circumstances would require to be very excep- tional in their character to warrant it. It is the spirit and policy of the school law that all such matters should be in the discretion of the Trustees under the Board of Education. The rate-payers who provide the money have ample means of protecting themselves against unnecessary extravagance, and are not likely to be very slow in adopting them. The occu- pation of the two buildings -the teaching of" the parallel grades, and the general arrangement, have the sanction of the Chief Superintendent; and so far as the expense is concerned, the Defendants' action lias received the approval of the rate-payers, and the Trustees, who incurred it, have been re-elected. Of the three Trustees, two are Roman Catholics, and one a Protestant— an apparently fair arrangement for a population about two-thirds Roman Catholic. The Plaintiffs, however, find even in this a ground of complaint; and it is asserted that Mr. O'Brien, the Protestant Trustee, and who has been for some years past Secre- tary of the Board, was a mere tool in the hands of his colleagues and their friends— clay in the hands of the potter. Mr. Skinner speaks of Mr. O'Brien "as a Protestant or a Catholic as he may be wanted to act, or as he wants to act himself— a gendeman of character and shrewdness, who acts with a semblance of doing rifi 16 justice to the Protestants when he is simply assisting the Catholic majority on the Board of Trustees to handle matters just as they please Evidence was given as to Mr. O'Brien's history It seems he was born a Roman Catholic, but afterwards became a member of the Church of England, to which church he still belongs; his wife is a Roman Catholic, and of his six children one-half is Roman Catholic and the other Protestant. One would suppose that a gentleman whose religious balance was so admir- ably adjusted had especial qualifications for a position in which the rule of the road required such strict observance. "Steer straiglit as the wind will allow; but be ready To veer just a point to let travellers pass. Each sees his own star-a stift" course is too steady When this one to Meeting goes-that one to Mass." It is quite possible that Tvlr. O'Brien may have made mistakes and in some respects disappointed the expectations of many of the rate-payers, but these are questions between him and them with wlwch this Court has no right to interfere, unless, as an officer of the Defendants, he has committed them to some unlaw- ful act or course of action. The third, fourth, fifth and sixth points, which relate to the religious exercises in the schools, may be stated under two heads- (I. That the schools are sectarian by reason of the religious exercises immediately before the opening of the school in the morning and immediately after the closing of the session in the afternoon; and (2) because, by Defendants' permission, these particular schools are closed on certain holy days of the Roman Catholic Church-not regular holidays as fixed by the Regula- tion. The facts which bear upon the first point are these- Previous to November, 1893. Reg. 20, sec. 6, provided as follows • Ihe hours of teaching shall not exceed six each day. exclusive of at least an hour allowed at noon for recreation." The Sisters as well as the Defendants, construed this rule as meaning that the noon hour was not one of the school hours, and religious exercises were therefore permissible during that hour • and as a fact, catechism was taught at the noon hour. To remove all doubt on the question, the Board of Education, on the loth November, 1893, amended this section by enacting that the term "school hours" should include all the time between the opening and close of the school for the day. The noon teaching was then discontinued, and was not in practice when this suit was com- menced. How this religious teaching is conducted is described by Sister Mary Stephen in her evidence. She has been teaching f 17 I I f in the school since 1891. She has charge of the primary depart- ment; teaches the first and second grades; has a mixr-d school the children varying in age from five to eight years, of whom 1 small number are Protestants. Her school hours extend from 9_3o a. m. to 3 p. m. She says that she takes the Roman Catholic children into the class room for instruction from about ten minutes to 9 until the school bell rings at 9.25 or 9.30, when all the chil- dren come in, the roll is called, and the school work for the day begins. When the afternoon session closes at 3 o'clock, the Protestant children leave. About ten minutes are then spent by the Roman Catholic children in the repetition of the Lord's Prayer or other prayers taken from the Roman Catholic prayer book By Regulation 23, section 8, it is made the duty of the teacher " subject to the arrangements of the Board of Trustees, to see that the school house is kept in proper order in respect of clean- liness, neatness, heating and ventilation ; and especially //,a/ the school room is ready for the reception of pupils at least hve^Uy mitiutes before the time fixed for opening the school." It was contended that the occupation of these class rooms for the half hour before opening the school in the morning was a direct vio- lation of this Regulation, because it is impossible that the teacher can perform the duty thereby imposed upon him, of having the room ready for the reception of pupils twenty minutes before the time fixed for opening the school, without having the right to occupy the room for the purpose, which the use of it by the Sisters prevented. More than that, it is said that by a fair con- struction of the Regulation, any pupil has the right of entering the room at any time during the twenty minutes before the open- ing of the school, which Protestant children are prevented from doing by the Roman Catholic religious services going on there at that time. It is impossible to expect children to arrive at school on scheduled time as one expects a railway train to do • and it was argued that this Regulation recognized that fact, and the provision of the twenty minutes was made to meet it. I do not feel called upon to express an opinion on this point for reasons which I shall presently state, though I must confess to having been much impressed with the Plaintiffs' argument. The Bill in this case does not ask for relief in consequence of the infringe- ment of a Regulation or in consequence of the school property being used, by Defendants' permission, for illegal purposes There is no such allegation in the Bill. The sole ground put forward is that the schools, as carried on, are sectarian, and in endeavoring to establish that proposition the Plaintiffs put forward 18 riT 1 It '■°'""' "^ '■'"^'^""P ^''^ ^'-■h«^ol« sectarian, can understand how ,t might be contended that the use of Th tonM "' ^"''^/^^-P^^'i- -f -y effect on the'schools. Ihat pmnl however, does not arise here, for the use of the class rooms or the purpose of religious teaching is only question d and us legahty den.ed. because such use renders th'i Convent schools sectarian schools. The argument is simply this-that the Roman Cathohc rel.gious teaching prefixed to tlL school work •n the mormng and affixed to it in the afternoon, virtually and pracfca ly become part and parcel of the school work for the day. and thus sectarianize it I cannot state the contention better ;inX^"Mrrkt;r ^^- ^-^^'^ '''^--' ^'-" - ^^^ -•^■"^- "Q. When it comes to your knowledge that the school room» are used nnmcd.ately before and immediately after the openir and d.sm.ssal of the school respectively for the purpose oHh^ mg.the doctnnes of some particular church, whereby the children a, d tL ; 1 ""^' "'"■■ '^ ''•""^"'^ -d- 'ha^ teaching" and the mfluence that ,t mculcates. or be sent away, is it allowed to go as a matter of right by the Board of Education > " A I wish to say that I have no disposition to evade at all in regard to th.s matter. I may say this : that as Superintendent of a scho iT' uV"' v'^"^"^^ '^ "'y '"*y ^° P-h^bit the use of a school bu.ldmg for rehg.ous meetings, or other n.oral meetings after he close of school hours, provided that the Trustees unan -' mously consented to the use of the building for such puroosel As a matter of fact throughout the whole Pr^ovince scLd bu d-' ■ngs are used for holding religious meetings, political meet.'gs. and temperance meetn.gs, in various places, and I have no thought .t my duty, even if I had the authority to do so ta interfere m such cases as that, and so it would be in the cas; of the teachnjg the Roman Catholic catechism, I would not fed after scnool hours, that it was my duty to interfere "Q. Take for example-supposing a building is used for a school, and the school is dismissed at 4 o'clock and after that hour, and what is generally the case when religious meetings are held m school houses, they have nothing to do at all with the pupils as such or any connection with the school as such would you not consider It a very different matter from a teacher s'ending away a portion of his or her pupils and keeping the other portion 19 as a continuation of the .school, so to speak, and teaching religion ? Is there not a great difference in a matter of that kind ? " A. I do not see essentially there is a very great difference. " y. What do you mean by 'essentially'? " A. If you called the meeting at 6 o'clock. " Q. For the public ? " A. For the public, or children, or any one who chose to go essentially to my mind it does not differ from having the meeting at 4 o'clock lor the same purpose-just on the dismissal of the school— to my mind it does not essentially differ. " y. If you had sent away a portion of your scholars, and retained another portion, does it not bring up to the mind of those sent away the thought that they are excluded from that which the other pupils get ? It must inevitably bring that right up, does It not ? You would have to accede to that, I fancy ? " A. In the same way that they may be said to be excluded from a place of worship on Sunday or at other times. Their parents do not wish them to attend. " Q. Would you say that is just the same as if church on Sun- day held at that school house and the children excluded from that ^ " A. It differs from it in the fact that the public generally attend in the one ca.se and they are not supposed to attend in the other. "Q. Is there not a marked difference in the mind of a child and must not the child be influenced to either have an abhorrence of the religion they are .sent away from so as not to be taught it or that they are excluded from something-some benefit-that they ought to reap ? One or the other must be brought to them ? "A. I think, naturally, few children would draw such an in- ference." After some questions as to objective teaching, the examination proceeds : " Q. Then the state of things described as existing here are very strong objective lessons from the teaching in connection with the school hours, although immediately after ? " A. I think the pupils of more mature mind at any rate would be drawing inferences no doubt-thinking something of the mat- ter-calling their attention to the subject at least, no doubt about that. " Q. When these things (it must from the existing state of things and circumstances we are talking about) arise in the pres- ence of the pupil, so to speak, must they not so far as the particular l! 20 pupil is concernci ,,.xn Ihat .chool into a sectarian school a. contra-cl,.st.„Knnsh.., ..-^ , non-sectarian school =• A. I (io not think tU*i „,\l„^^ "y. Why not? tn 1 ^•, .^""""^ ' ^.'■•''^' ■■' fli^tinclion between the work done un to the .j ,„ on ? " "A. I do not agree with you." -^ as '[> er le 21 It is evident Ironi this tl.at the Hnan! of Education arc not only fully conversant with these grounds of complaint, but that they do not consider the reliRious teaching outside of actual school hours as involvinyr a violation of either the law or the RcKula- tions. or as ni any way having; the effect attributed to it by the i laintifts. This Board composed as it is of the Governor the Executive Counni. the ^rhaiiuilor of the University of N. h'and the Chief Superintendent of Education, is invested with the fullest powers under the School Act. As the late C. J. Ritchie in ex Parte Renaud. says : " It, on behalf of the inhabitants of the Province at laiBc lb responsible for the jjeneral working of the system " I should require a very clear case before restraining the Defendants from continuing a practice which has the approval of the Hoard of Kducation, especially when its determination involved distinc- tions so subtle and refined, as many of these* suggested by Mr Skinner in the examination, from which I have just given extracts I he legal question to be decided is this: Are the lichools con- verted from non -sectarian to sectarian schools by the religious teaching before and after school hours? The use of the class rooms for the purpose and the alleged violation of Regulation 2X are but evidences of that fact. It seems to be conceded that no -such result would follow if a substantial period intervened between the school hours and the closing of the religious teaching in the morning and its commencement in the afternoon. Is not this dis- tinction almost too refined ? The hours for opening and closing tiie schools are fixed and well known ; and children of fourteen years of age and under, who are sufficiently astute to ac.iuire a knowledge of the distinctive teachings of the Roman Catholic Church, by the method suggested, are certainly entitled to be credited with knowing the preci ;e time a which they are expected to be at school in the morning, and the precise time at which they are at liber y to leave lu the afternoon. Having this knowledge am una 1. to see how a child by seeing some of his fellow scholars remain for religious teaching at the close of the school while he IS at liberty to go away, can be in any more danger of thereby imbibing Roman Catholic doctrines, than if he saw the same scholars going to the same room for the same purpose an hour later. vVhat period of time is the Court to fix between the closing of school and beginr-P;V^c;;7 it was ample for that number less all who were attending the Convent building. The fact is ila the schools in the Grammar School building had got n bad rep e for reasons into which it is unnecessary to inqui^ here. Ci rg had oeen made against Cowperthwaite, one of the teachers by Gan.mon, one of the Plaintiffs in this case, which eventua Jled to his dismissal ; and complaints had been made in reference to other matters which had considerably impaired the charact r and efficiency o the schools. Mr. Gammon, one of t e P 1 t fS^ ' and ^W.o IS described as feeling especially aggrieved by al Ih^i i;:!t;^:r ^ '-' '^^^-^ -''-- -^^^ — '-i- "Q. Did your complaint go simply to the acts or co.nduct of Cowperthwaite, or was u generally to the conduct in die whole ''A. The whole school, I presume it was. "Q. Do you not know? "A. I am certain that it was to that extent _^^'_;Q. Then it went to the whole school taught in that build- " A. I referred to the schools taught in that building. The witness, it must be remembered, is here speaking of the Grammar School, or public school, as many of the witnies call 29 it-not the Convent School building. At page 220, when under examination by his own Counsel, he said as follows : "Q. Mr. Lawlor asked you a great deal about the private school. Tell me the history of its formation-why it was opened or why it was started ? "A. The one reason I had personally myself was, that this public school was run so careless in several ways, it was hardly fit to send children to. I thought so and I intended to keep my children home. " Q. Then you have stated, have you, any other reason in regard to the matter ? " A. I don't know I had any other reason at the time, only just the careless way the schools were conducted." It is clear from this evidence that the Convent building schools had nothing whatever to do with the so called private school If the allegation in the Bill means, as perhaps it was intended to mean, that as the schools in the Convent building were then conducted, the influences were so Roman Catholic in their char- acter and tendency as to preclude any Protestant child from going there, that is a different question. If I am correct in -my view that these schools are not sectarian, that the employment of Sisters as teachers, their wearing their usual garb while teaching, having religious instruction of a sectarian character before and after school hours, and the occupation of rooms in a Convent building under lease for school purposes to the Defendants, are all lawful or at all events do not render the schools sectarian, it follows as' a legal proposition that Protestants have nothing to complain of becau.«e they have everything the law guarantees to them-free education ,n non-sectarian schools. If their fears of Roman Catholic influences, or their prejudices against the Roman Catholic Church, or their conscientious religious scruples prevent them from accepting what the law offers to them, in common with every- •one else, it is their misfortune and no fault of the law. It is simply a case of persons feeling unable, for reasons of whose sufi^ciency ' they alone must be the judges, to avail themselves of privileges afforded to them by an Act of Parliament. Many persons, from reasons of a social character, object to sending their children to a public school where they are obliged to mingle, as they say with the masses and the classes there assembled, and therefore pay their taxes and private tuition fees as well. Such persons are deprived of no right because the classes and masses are thus assembled because the law was not intended to preserve such 80 ^ eeJ them. So others, as ,n this case, either from prejudice or in the conscientious be lef that if th^-.V oK.-m P'^juuice or in wmonc Deliels, or be injuriously influenced in their reIioinn« education ard .faith, refuse to place their chilcL „! u environment or within the spher'e of such infl c Vh:; arT however, deprived of no right, because the law never ^t'aranteed more than free education in a non-sectarian scrool a, d free education in a school so taught is free education in a non-s^clan^: fdlo^s '^"'"^^ °^^'- ^^-^^°^^^ Schools Act of r^ollayTl .Hv" T° "'"'' u "' "^-^P^'l^d to attend a public school. No soecial advantage other than the advantage of a free education in «T, cloH ■' " '^'^ '^^' '' •« impossible for Roman Cathohcs, or for members of the Church of England f.Y the" v.ew. are correctly represented by the p-.hop of Rupert' LanT who has given evidence in Logan's case), to send their children to pubhc schools where the education is not superintended and directed by the authorities of their church and thTl c Roman Catholics and members of the Church of Enll . 7 are taxed for public schools, and at the same t me lellhrm' sdves compelled to support their own schools a en e s" favorable position than those who can take advantage of the free education provided by the Act of xSgo, That may be so But wha right or privilege is violated or prejudicially affec ed bv tht law? It ,s not the law that is in fault. It is owinTto l" • convictions which everybody must respecl Indl'tl e e fhin" of their Church that Roman Catholics and members of tleChu "h of England hnd themselves unable to nartake nf T . which the law offers to all alike." advantages So here it is owing to prejudices or religious convictions which are of course entitled to every respect, that prevenlt ose to'aiiXr'" ^'^"^ '^^"^ '-''^'''^ °^^^--^^- ^Lrj^oZ 81 There is neither allegation in the Bill nor express proof, that all or any of these matters were ever made specific grounds of the To" H '\'\: ^°''^ °' ^'"'^^^'°"- '' '« -'^-^» however hat h Board ,s fully aware of then., and has been always aware o\ them^ If they remam unredressed I must assume they were not considered substantial grievances, or else there were "good and sufficient reasons for the Board's inaction. If the Defendants Tuldtnd '^ Z^'f '■''''' '""'^ '^' '"^^^' purposes, tht Co would find no difficulty m restraining them ; but where the causes of complamt ar.se from unwise administration or breaches of regulations mvolving no such misappropriation the Paintiffs must look ior redress to the Board of Education, under whit control and supervision the whole School system is worked Order -That the Plaintiffs be at liberty to amend the Bill byconvertmg.tmto an information at the suit of the Attorney General, with the Plaintiffs as relators, provided a draft of such amendment signed by the Attorney General as consenting there o be filed with the clerk, at any time before the n.nules are sett ed which IS not to be done before the ist April next. The Informa .on will then stand dismissed, with costs to be paid by "he relators. Otherwise the Bill will stand dismissed with costs